U.N. CERD Texas-Mexico Border Wall Request-UT LAW HR CLINIC-LAWDEFENSE-MTAMEZ

HUMAN RIGHTS CLlNIC THE UNIVERSITY ,,/TEXAS SCHOOL ofLAW

Ms. Gabriella Habtom

Secretary UN Committee on the Elimination of Racial Discrimination UNOG-OHCHR 1211 Geneva 10 Switzerland

The Situation ofthe Texas-Mexico Border Wall: A Request for Consideration under the EarlyWarning and Urgent Action Procedures of

the United Nations Committee on the Elimination ofRaciaI Discrimination (80th Session)

Executive summary

The construction ofthe border wall has had and will continue to have a negative impact on the communities living along the border, especially indigenous communities and pOOl' Latinos. The construction of the wall occurred in a discriminatory manner, and continues to have discriminatory effects. The intervention of the Committee on the Elimination of Racial Discrimination, utilizing its early warning and urgent action procedures, is necessary to stop the harm that the border wall is continuing to inflict on indigenous communities and pOOl' Latinos. Intervention by CERD is warranted because five of the elements of the early warning and urgent action procedure have been met: i) adoption of new discriminatory legislation; ii) encroachment on traditionallands of indigenous peoples; iii) a

significant and persistent pattern of racial discrimination evidenced by social and economic factors; iv) lack of an effective recourse procedure; and v) lack ofjudicial remedy.

Beginning in 2005, the United States Congress began enacting legislation, including the REAL ID Act and the Secured Fence Act, that allowed the U.S. government to build a wall along the border between the U.S. and Mexico. The government has used many inconsistent rationales to justify building the wall, including reducing illegal immigration, preventing terl'Orist attacks, and controlling drug trafficking. In 2006,

Congress passed the Secure Fence Act, which gave the government the ability to waive any laws that could possibly interfere with the construction of the wall. Using this power, the Department of Homeland Security (DHS) waived 36 federal and state laws, including laws for the protection of indigenous peoples and key pie ces of environmental protection legislation.

The Secretary of DHS was also given the discretion to determine the location and total mileage of the wall. The wall has not been constructed as a continuous barrier­on the contraly, it is made up of different segments that stop abruptly at various intervals along the border, creating gaps in the wall. The intermittent nature ofthe wall calls into question the government's justifications for its construction; the gaps seem to negate the government's claims that the wall is necessary for immigration regulation, drug trafficking control, 01' terl'Orism prevention. The wall, ostensibly planned for security purposes, was erected through sensitive environmental areas, indigenous lands, and small private propelties, but nonetheless skips sorne segments of the more lucrative properties owned by businesses.

The construction of the wall is a result of the adoption of new legislation that has had a discriminatOlY effect on members of the border communities. The legislation allowed the government to avoid consultation with theaffected border communities, including indigenous peoples and poor Latinos, and gave the government excessive powers to construct the wall regardless of its harmful environmental and social impacto The legislation also encouraged a lack of transparency regarding the government's decisions about the wall, and led to arbitrary decisions regarding the wall's placement. The U.S. government has failed to take effective measures to review the discriminatory effects of its legislation, resulting in ongoing discriminatOlY effects on indigenous peoples and pOOl' Latinos living along the border.

In constructing the border wall, the U.S. government has also encroached on the traditionallands of indigenous peoples. Several tribes have been affected. This brief focuses on three specific groups of indigenous peoples: the Kickapoo Traditional Tribe of Texas, the y sleta del Sur Pueblo, and the Lipan Apache. The border wall has encroached on their traditionallands in various ways.

For the Kickapoo, the wall itself does not enter their reservation. However, it prevents easy crossing between triballands both nOlth and south of the border, forcing Kickapoo members to pass walls and checkpoints to access their traditional land. The wall prevents easy navigation ofthe Kickapoo's land, which is essential for

their livelihood due to the seasonal nature of their work. The wall also cuts off access to a traditional Kickapoo burial ground and impedes rituals for which access to the Río Grande Ríver is necessary.

The wall goes directly through traditionalland of the y sleta del Sur Pueblo, and cuts off any access they previously had to the Río Grande River and their traditional sites. The Ysleta del Sur Pueblo have strong connections with the land surrounding the river, and the border wal! has prevented them from properly carrying out traditional ceremonies.

The wal! also cuts through the traditionallands of the Lipan Apache. The Lipan Apache have not received official recognition from the federal government, which increases their need for protection from CERD. The wall has had serious detrimental impacts on the Lipan Apache's traditions, culture, and survival prospects. Testimonies from the tribe show that there is fear that the tribe, if forced to leave the land, might dissolve altogether and their history and knowledge will be lost to future generations. Affidavits from Lipan Apache tribe members highlight the urgent need for action. ..,

Hostilities between tribe members and government agents are increasing in frequency and severity. On a wider scale, the border ,vall is serving to compound racial tensions, hostility, and marginalization of indigenous peoples. Definitive action from CERD is necessary to prevent fmther discriminatory impacts of the border wall, and to require the U.S. government to display the respect for indigenous peoples demanded by CERD.

The government has also failed to properly consult with indigenous communities living along the border. CERD recognizes that states must take special measures to ensure the fuI! enjoyment of rights of indigenous communities, and that the obligation is especially strong with regard to the enjoyment of traditionalland because of the crucial role it plays in preserving the survival of their cultural identity. The United Nations Declaration on the Rights of Indigenous Peoples requires that states cooperate with indigenous peoples and consult with them in order to obtain free and informed consent before taking any steps that would affect them and their way oflife. CERD has declared in the past that this obligation relates to both specific and general ways in which traditionalland will be affected.

In 2008, Congress amended the Secure Fence Act, creating obligations regarding consultation with indigenous peoples. DHS was expected to consult with affected property owners, indigenous tribes, and local governments regarding construction of the border wall in order to minimize the impact on the environment, culture, commerce, and quality oflife in areas considered for the border wall. There is much evidence, however, suggesting that DHS did not fulfill the consultation requirements. For example, internal emails between government personnel show that critical steps of consultation were missed and that there was a general attitude that the outreach program was of the lowest priority. While DHS claims to have held 20 "town hall meetings" with various border communities, the Texas Border Coalition, which has

been involved in anti-border wal!litigation, has publicly cal!ed the claim of having held town hal! meetings "total!y false," stating that the DHS's "public outreach program is a joke." The evidence thus shows that the government did not fulfil! its domestic 01' international obligation to consult with indigenous peoples about the construction ofthe wal!.

The U.S. government is failing in its duty to treat indigenous communities with respect and dignity. It is taking into account the unique relationship between these communities and the land, and is disregarding their ríght to juridical personality and to fuI! enjoyment of civil rights. The construction of the border wal! has caused and wil! continue to cause discrimination against indigenous peoples, preventing them from exercising their human rights on an equal footing 'with the rest of the population. The affidavits from members of these indigenous groups explain that these problems are ongoing and will continue until indigenous peoples see sorne form of recognition from the U.S. government. Urgent action is necessary to prevent the continuation of the U.S. government's increasingly hostile relations with indigenous groups.

Both indigenous peoples and pOOl' Latino communities are disproportionately affected by the placement of the border wal!. A statistical analysis conducted by the University of Texas revealed a higher income range and a higher proportion of non­Hispanic and English-speaking households in the gap areas as compared to wal!­designated blocks where more Spanish-speaking and Hispanic and Native American households are concentrated. The wal! was built through sensitive environmental areas, indigenous lands, and smal! prívate propelties but does not run through larger and more lucrative properties owned by businesses like the River Bend Golf Resort. This arbitrary placement by CBP officials adds to the already pervasive racial tensions that exist between the U.S. government and the Latino community.

Additional!y, the process by which the U.S. government took land on which to build the border wal! was discriminatory and has caused irreparable harm to the border communities, especial!y pOOl' Latinos. In order to acquire the land on which the wal! was to be constructed, the government asselted its eminent domain powers to take title to land owned by citizens living along the border wal!, including the traditional lands of indigenous peoples. In initiating these actions, D HS and the Bordel' Patrol did not provide sufficient information to those who were having their land condemned, and did not compensate landownel's fol' DHS's use oftheir land during the surveying and planning process. Many people, particularly pOOl' Latinos, did not understand what their rights were, and did not have any opportunity to chal!enge the taking of their land.

Even those who did understand that theil' land was being taken, however, did not have sufficient means of chal!enging this government action. Condemnation cases are initiated when the government sues landowners, who then need to hire lawyers to defend themselves against the suit. If landowners disagree on the amount offered, they have to pay attorney's fees and hire several other experts to conduct studies that prove that their land has a highel' value. In contrast, the federal government has

many resources at their disposal, which makes condemnation law favorable to the government.

There is currently no adequate judicial process available to challenge the racially discriminatory impact of the wall, leaving people living along the Texas-Mexico border without any effective judicial recourse. This is in violation of the CERD requirements that states provide an adequate recourse procedure and an appropriate judicial remedy for instances of racial discrimination. Under U.S. law there is no means by which victims of racial discrimination can petition the judiciary to receive any sort of effective remedy for the discriminatory harm resulting from the border wall's construction. Litigation in the U.S. has not been able to halt construction of the wall because U.S. comts have refused to hear claims for racial discrimination related to the wall and have steadily cut back on meaningful remedies, such as broad injunctive relief, that would mandate government reformo

Finally, the construction of the border wall was carried out in a racially discriminatory manner and has had and continues to have very harmful effects on indigenous populations and poor Latino communities living along the border. This satisfies the CERD requirement of a significant and persistent pattern of racial discrimination evidenced by social and economic factors. The border wall comes írom, and contributes to, an environment of discrimination in U.S. immigration policy that unduly discriminates against Latinos. Last year, state legislators around the country introduced 1,607 bills and resolutions Can unprecedented number) relating to immigrants and refugees that had the effect of increasing racial profiling. The construction oí the border wall is a representation oí the national political debate regarding illegal immigration that has heightened concerns about discrimination against Latinos.

The harmful effects oí the border wall did not stop once the wall was constructed. The damaging and discriminatory impacts of the wall are ongoing. Today, members of indigenous communities still feel threatened and pressured to leave their land due to the government's takings actions, as well as the increased presence of armed border patrol. The number ofborder patrol agents stationed at the Texas-Mexico border has more than doubled since 2004, leading to the increased sense of militarization for border communities. Citizens who have had their land taken continue to have no recourse to challenge the taking. Additionally, the border wall has continued to polarize U.S. discussion about immigration issues, lending a more racial and discriminatory tone to the debate. For instance, one recent contender for the U.S. Republican presidential nomination suggested electrifying the border wall and adding barbed wire at the top as a possible solution to illegal immigration. üther previous contenders have also proposed radical additions to the wall, including building a double wall the entire length oí the over-2,000 mile border between the U.S. and Mexico. In the most recent legislative session, two bills were proposed in Congress that would deploy the National Guard to the border and would construct double- and triple-layer walls along the border. While neither bill has gone forward, these continued legislative actions show that there is a real possibility that the border wall will be extended and reinforced, and that even more government personnel will

be sent to patral the border. As a result, the harmful effects of the border wall will only continue unless action is taken. It is necessary for CERD to intervene in arder to prevent further harm fram coming to the indigenous peoples and pOOl' Latino communities living along the border.

HUMAN RIGHTS ClINIC THE UNIVERSITY ofTEXAS SCHOOL ofLAW

The Situation ofthe Texas-Mexico Border Wall: A Request for Consideration under the Early Warning and Urgent Action Procedures of

the United N ations Committee on the Elimination of Racial Discrimination (80th Session)

ACE CBP DHS FOJA GAO IAHCR IBWC OAS OBP UNDRIP

ACRONYMS AND ABBREVIATIONS

Army Corps of Engineers Customs and Border Protection Department of Homeland Security Freedom of Information Act Government Accountability Office Inter-American Commission of Human Rights International Boundary Water Commission Organization of American States Office of Border Patrol United Nations Declaration on the Rights ofIndigenous Peoples

TABLE OF CONTENTS

I. Introduction .......................................................................................................... 1

II. Background .......................................................................................................... 3

III. The U.S. government has failed to properly consult with indigenous peoples living along the border ........................................................................................ 5

IV. The placement of and justifications for the border wall are arbitrary and have a racially discriminatOlY impact on the border communities ............................. 22

V. The U.S. has no adequate judicial process available to challenge the racially discriminatory impact of the wall ..................................................................... 29

VI. The construction of the border wall is heightening racial tensions along the border, harming the already marginalized populations that live there ........... 33

VII. Consideration under the CERD early warning and urgent action procedure is warranted ............................................................................................................ 37

VIII. Conclusion and request ..................................................................................... 39

Ms. Gabriella Habtom

Secretmy UN Committee on the Elimination of Racial Discrimination UNOG-OHCHR 1211 Geneva 10

Switzerland

The Situation ofthe Texas-Mexico Border Wall: A Request for Consideration under the Early Warning and Urgent Action Procedures of the United N ations Committee on the Elimination of Racial Discrimination (80th Session)

I. Introduction

1. This request considers the current "border wall"I situation in Texas, in the Southwest ofthe United States. The wall's construction is a manifestation of the U.S. government's desire to secure the Texas-Mexico border. When construction began, however, there arase legitimate concerns of racial discrimination against indigenous communities (Lipan Apache [South Texas], Kickapoo Tribe [Eagle Pass Area] and y sleta del Sur Pueblo [El Paso area of West Texas]) and low-income residents of Latino 2 descent living in the border area. Both the construction of the wall and patterns of racial discrimination are ongoing issues, as U.S. legislators have additional plans to reinforce and extend the border wall. Therefore, this request is respectfully submitted for consideration under the Committee on the Elimination of Racial Discrimination's early warning and urgent action procedures. It is submitted bythe Human Rights Clinic3 ofthe University ofTexas atAustin, Dr. Margo Tamez (Lipan Apache Band of Texas), and the Lipan Apache Women Defense, an Indigenous

, While the Deparlment of Homeland Security, Customs & Border Protection, and the Border Patrol all employ lhe discourse of"border fence" to describe the physical barrier along the U.S.-Mexico border, the community affected by this barrier alternatively utilizes the lerm "border wal!." See Types of Fellce, U.S. DEP'TOF HOMELAND SECo (Oct. 26,2011), http:j jwww.dhs.govjfilesjprogramsjgc_"207842692831.Shtm (describing the barriers constructed along lhe border as a "vehicle and pedestrian fence"). In keeping with their preference, lhe Clinic wil! also employ the term ''border wa1l" in describing this barrier. 2 For the purposes oí this submission, we are defining the term "Latino" to encompass those persons along the border who are included in statistical data in connection to "Latin American" deseent. The elinic understands that this tel'ffi is quite complex and embodies a multitude of nationalities, identities, and cultures. Far example, there is critical debate about the applicability and relevance of lhe demographic descriptors "Latinoja" and "Hispanic," in the U.S. and South TexasjTexas-Mexico border context, especia1ly in light of lhe history of lhe U.S. as a racial state with a specific context of xenophobic antagonism toward Mexico, Mexican citizens, and U.S. imperialist logics regarding indigenous Mexican peoples as a a non-White, homogeneous surplus labor gl'OUp. See DAVID 'fi1E0 GoLDBERG, THE RACIAL S'l'ATE 190 (2002). 3 The Human Rights Clinic at the Univel'sity ofTexas at Austin is compl'ised of an intel'disciplinary group oflaw students and graduate students, working under the guidance of elinic Director Ariel Dulitzky. Students leam substantive human rights law thl'ough critical classroom study, discussion, and l'eflection. Working from the advocate's perspective, students participate in a host of projects and collaborate with human rights organizations worldwide to SUppOlt human rights c1aims in domestic and international forums. The Clinic's \York includes investigating and documenting human l'ights violations, developing and participating in advocacy initiatives before the United Nations and regional and nalional human rights bodies, and engaging with global and local human rights campaigns.

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Peoples' Organization in El Calaboz Ranchería situated on Kónitsqqii Gokíyaa, the Lipan Apache customary lands.

2. The U.S. government has used eminent domain powers to construct a border wall along the U.S.-Mexico border. The power was used to take peoples' land, whether the landowners gave permission or noto This request deals specifically with Texas residents in the Rio Grande (the official international border between the U.S. state of Texas and Mexico) and El Paso (Southwest) aI·eas. Those affected are predominantly low-income residents of Latino descent 01' members ofloeal indigenous tribes. While the government is entitled to exercise its right of eminent domain, the government's approach to eonstructing the border wall, and all of the issues that flow from it, is raising various issues of racial discrimination. The racially discriminatory impact of the border wall is ongoing, and the U.S. has failed to respond to these coneerns. The government's taking ofland along the border and the diseriminatory effects of the border wall eontinue to violate the human rights of indigenous peoples and pOOl' Latinos living along the border. As a result, intervention by CERD under its early warning and urgent action procedure is crucial in order to stop the harmful and discriminatory effects of the border wall.

3. The issues of racial discrimination ean be broadly divided into three eategories. First, the wall greatly affects the rights and lives of the indigenous eommunities along the border. The government has failed to consult with and respect these groups, two duties recognized by CERD and required by various other international eonventions and treaties. Seeond, the wall is not eontinuous. Plaeement of the wall is arbitrary and in sorne plaees inexplieably avoids the property ofhigh-income residents. The border wall project has disparately impacted low­income Latino residents and violated their right to equal protection. Finally, despite the government eondemning several plots of privately-owned land in the border area in order to build the wall, there currently exist no plausible methods within the U.S. legal system for affected land owners to challenge these takings on the grounds of racial discrimination. In addition to these specific issues of racial discrimination, the problems are exaeerbated beeause the border wall project is palt of a wider picture of racially charged U.S. immigration policy. The project is compounding these issues, and its eonstruction has led to increasing "militarization" and racial tension in the border area.

4. Afier providing a briefbackground, this request will detail the aboye three instanees of racial discrimination, followed by a description of the restrictive U.S. immigration polieies and the wider impact that the border wall has hado From this discussion, it is clear that five of the indicators for CERD' s early warning and urgent action procedure have been fulfilled4 and that action by CERD is required to stop or limit this on-going and irreparable harm. The criteria fulfilled are: i) adoption of new discriminatory legislation; ii) encroachment on traditionallands of indigenous peoples; iii) a signifieant and persistent pattern of racial discrimination evideneed by

4 U.N. Repolt oflhe Comm. on lhe Eliminalion ofRacial Discl'imination, Feb. 9-Mal'. 9, July 30-Aug. 17, 2007, U.N. Doc. Aj62/18 (2007) al 117 [hel'einaftel' CERD Early Warning Guidelines].

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social and economic factors; iv) lacle of an effective recourse procedure; and v) lacle of judicialremedy.5 The report concludes with recommendations for the U.S. government regarding the steps it should take to rectify the harm created by the border wall.

11. Background

5. After the terrorist attacks of September 11, 2001, the U.S. government considered it a national priority to secure its borders by preventing the entrance of alleged terrorists, undocumented immigrants, and drug traffickers. However, as will be discussed in section IV(c), there is little evidence that the construction of the border wall is an effective method to deal with these different issues. In 1990, a barrier was erected in a small stretch of the San Diego, California area, even though, historically, no physical wall 01' any other barrier has separated the 2,000-mile border between the United States and Mexico.

6. Members of the U.S. Congress, a group composed of an overwhelming majority (over 80 percent) of white Christian males,6 approved severallaws between 2005 and 2008 in order to allow the construction of the border wall. In 2005, Congress passed the REAL ID act, followed by the Se cure Fence Act in 2006, in order to grant the Secretary of the Department of Homeland Security (DHS) the right to waive any laws already in place, in order to expedite the construction of barriers along the entire U.S.-Mexican bordeO (This submission is, however, limited to the communities that live along the Texas-Mexico border). Using powers derived from the Secure Fence Act of 2006, the DHS waived 36 federal and state laws across 470 miles of the southern border in April 2008, including leey environmentallaws such as the National Environmental Policy Act and the Endangered Species Act, as well as the Native American Graves Protection and Repatriation Act and the American lndian Freedom Act. The Administrative Procedure Act, which requires any government agency to provide transparency and oversight of its decision-making process, was also waived.8 As will be discussed more fully in section V, this legislation allowed the government to evade its legal requirements, and eliminated any incentive for the federal agency to consult with border communities about the location and construction of the border wall.

7. The 2008 Consolidated Appropriations Act mandated the construction of "not

5 Id. (guidelines 12(C), (h), (a) and (e), respectively). 6 R. El'ic Petersen, Repl'esentatives and Senators: Trends in j\tlembel' Chal'Gctel'istics Since 1945, Congressional Reseal'ch Service at 7, 23, 26 (Feb, '7, 2012), available at http:j j digitalcommons.ilr.comell.edujcgijviewcontent.cgi?article=l892&context=key _ workplace. 7 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stal. 231 (codified in scattered seclions of 8 U.S.C.); Se cure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638 (codified in scattered sections of 8 U.S.C.). 8 Notice of Determination for !llegal Immigration Reform and Immigrant Responsibility Act of '996,73 Fed. Reg. '9078, '9079-80 (Apr. 8, 2008); 42 U.S.C. § 300f (2006); 5 U.S.C. § 551 (1946). See also Jenny Neeley, Ove1' the Line: Homelalld Secul'ity's UncollstitutionalAutho1'ity to Waive all Legal Requi1'emelltsjo1' the PU1'pose oj Building B01'de/' Inj1'ash'l1ctu1'e, A1uz. J. ENV. L. &POL'y, Vol. 1, No. 2 at 141 (2011) (discussing the laws waived by Michael Cheltoff, former Secretmy of the DHS).

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less than 700 miles"9 of wall with 370 miles of priority areas along the U.S.-Mexico border. Furthermore, it left it to the discretion of the Secretary of Homeland Security, for the purpose of the expedient construction of fencing barriers, to determine the type of fencing, the total mileage of the wall, and its location.'o It is important to note that the border wall itself is not a continuous barrier, but instead is constructed as a group of different segments that stop abruptly at various intervals along the border, thus creating "gaps" in the wall. However, the use of intermittent fencing makes questionable the effectiveness of those barriers and reveals its arbitral')' nature. The wall, planned for security purposes, was erected through sensitive environmental areas, indigenous lands, and small private prope1ties, but nonetheless skips sorne segments of the more lucrative properties owned by businesses. ll

8. The construction of the wall is a result of the adoption of new legislation that has had a discriminatory effect on members of the border communities. Specifically, new legislation included the Secure Fence Act of 2006, the Consolidated Appropriations Act of 2008, and other related legislation,l2 The legislation allowed the government to avoid consultation váth the affected border communities, and gave the government excessive powers to construct the wall regardless of its harmful environmental and social impacto The legislation also encouraged a lacle of transparency regarding the government's decisions about the wall, and led to arbitrary decisions regarding the wall's placement. The U.S. government has failed to take effective measures to review the discriminatory effects of its legislation, which is in direct violation of ICERD Article II.'3

9. According to the U.S. Customs and Border Protection (CBP), "as of January 27, 2012, CBP has completed 651 miles of pedestrian and vehicle fencing'4 along the Southwest Border. A total of 352 miles of primary pedestrian fence has been constructed, while the final total of vehicle fence (the project was officially completed on Janua1y 8, 2010) was 299 miles."15 However, the CPB has not provided information regarding what percentage of the originally planned wall has actually been built. Recently, several U.S. Republican candidates for the presidential nomination have suggested radical additions to the border wall, including electrifying the border fence and building a double wall along the entire 2000-mile border.'6 In the 2011-2012 legislative session, the Border Enforcement Act of 2011 was introduced

9 ConsolidatedAppl'Opriations Act, Pub. L. No. 110-161, Div. E, Tille V, § 564(a), 121 Stat.1844, 2090 (2007) (codified as amended at 8 U.S.C. § 1103 note 102(b) (2006)). W Id. at (2)(b). 11 Denise Gihnan, Obstl'ucting Human Rights: The Texas-j\tJexico BOl'del' Wall, The Working Group Oil Human Rights and the Border Wall (June 2008) [hereinafter Working Group Report]. 12 Id. 13 International Convention on the EHmination of AlI Forms afRacíal Discrimination mt. 2 (Jan. 4, 1969), 660 U.N.T.S. 195 [hereinafter ICERD]. '4 TlJpes of Fence, U.S. CUSTOMS & BORDER PATROL (Jan. '5, 2010), http://www.cbp.gov/xp/cgovfborde,-security jtij about_tijfence.xml. 15 Southwest Borde}' Fence Consh'uction Pl'ogl'ess, U.S. CUSTOMS & BORDER PATROL (Jan. 27, 2012), http://www.cbp.gov/xp/cgov fborde,-security jtijti_ne,vsjsbi_fencej. '6 Tlze Candidates on Immigmtion. COUNCILON FOREIGN RELATIONS (Feb. 27, 2012), http://www.cfr.org/united­statesjcandidates-immigrationjp26803.

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to the Senate, proposing plans to deploy additional National Guard troops to the border. This bill also proposes to construct a double- and triple-Iayer waIl along the border.'7 While this bill has not progressed through Congress, these continued legislative actions show that legislators have plans to extend and reinforce the border waIl, and that even more government personnel may be sent to patrol the border. Without CERD intervention, the construction and reinforcement of the border waIl willlikely continue and the harmful effects of the border waIl wiIl persisto

lB. The construction ofthe border wall affects the lifestyle of indigenous peoples since the U.S. government failed to properly consult with indigenous peoples living along the border, in violation of CERD requirements.

10. The indigenous communities inhabiting the Texas-Mexico border area have had their entitlement to individual, family, and communalland unduly restricted. GeneraIly speaking, their right to the land stems from ancestral, customary, and aboriginal title, but also from the Spanish Crown (through Spanish and Mexican land grants) and treaty-based systems established between lineal and hereditary chiefs and clans of the Lipan Apache Band of Texas with Mexico, Texas, and the United States.18 The state has used eminent domain and sovereign immunity to extinguish or simply ignore the title of these marginalized peoples in a situation of vulnerability. The crisis caused by the border wall has impacted indigenous peoples' ability to live, work, pray, and maintain kinship practices in traditional manners. As wiIl be evidenced, the wall creates physical barriers that block 01' hinder access to and between traditional sites. Moreover, the climate of fear caused by the "militarization"19 and increased government presence in the border area has placed intense strain on indigenous peoples. The waIl often either physicaIly 01' effectively separates people from their families-the core social unit of indigenous decision­making, governance, and self-determination.20

11. It is proposed that the U.S. government has shown an unacceptable disregard for the rights of these peoples. To appreciate the nature of the harm, one must appreciate that under internationallaw indigenous peoples are entitled to have their rights treated carefully and with respect, and that this right to respect is often very specific.

'7 Border Seeurity Enforeement Aet of 2011, S. 803, 112th Congo §§ 3, 5 (2011). 18 These are numerous; however, examples include: t~e Colonial del Nuevo Santander Treaty (signed on March 15, 1791 with the Spanish Colonial Government); the Alcaldes de las Villas de la Provincia Treaty (signed on August 17,1822 with the Spanish Colonial Government); the Live Oak Point Treaty (signed on Janualy 8,1838 with the Repuhlie ofTexas Govermnent); and the Treaty of Guadalupe Hidalgo (signed on Febl'U31Y 2, 1848 hetween the United States and Mexieo). 19 "Milital'ization" is the term used by border residents to describe illcreased goverllment presence and the inereased presenee of the border patrol. 20 It is impOltant to acknowledge that self-determination need not imply secession 01' lack of SUppOlt fol' the U.S., especially in post 9/11 America. We must appreciate that indigenous peoples' denouncement ofthe border wall is palt oí a reaelion against the waU's radical deprivation of fundamental freedoms and identity, not from any general anti-government selltiment or cynicism as to the legitimate aim of securing the border against terrorists, etc.

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12. First, it is important to acknowledge that indigenous peoples have a right to occupy their traditionalland because it is absolutely central to their way oflife. Indigenous peoples' unique way oflife and close relationship with the land makes "[t]he lands they traditionally use and occupy [ ... ] critical to their physical, cultural, and spiritual vitality."21 CERD is one of the many international human rights organs to recognize that states must take special measures to ensure the full enjoyment of rights of indigenous communities. The obligation is especially strong with regard to the enjoyment of traditionalland because of the crucial role it plays in preserving the survival of their cultnral identity.22 CERD has acknowledged the obligation of states to "recognize and protect the rights of indigenous peoples to own, develop, control and use their communallands, territories and resources."23 The Inter-American Court of Human Rights has acknowledged and applied this CERD standard, declaring that failure to meet it amounts to "irreparable harm."24

13. Specifically, the government's actions with regard to indigenous peoples meet two of the criteria from the revised CERD guidelines for the early warning and urgent action procedure: the presence of a significant and persistent pattern of racial discrimination evidenced in social and economic indicators, and an encroachment on the traditionallands of indigenous peoples 01' forced removal of these peoples from their lands.25

14. More generally, and in relation to the fundamental respect owed to indigenous peoples, the U.S. is in breach ofICERD articles demanding respect for "the right to freedom of movement and residence within the border of the state" and "the right to equal protection in cultural activities. "26

15. The U.S. government is also in breach of specific obligations to consult with indigenous peoples, respect treaties made with them, and ensure its actions are not harmful to indigenous peoples. ICERD demands that states take measures to examine any and all discriminatOlY legislation and policy.27 The construction ofthe border wall was a result of such legislation and policy. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) requires that states cooperate with indigenous peoples and consult with them in order to obtain free and informed consent before taking any steps that would affect them and their way of

" Indigenous and T)'ibal Peoples' Rights Ove)' Tlzei)' Ancest1'Q/ Lands and Natnra/ Resou)'ces: No)'ms and Ju)'isp)'udence of the Inte)'-Ame)'ican Human Rights System, 11 A Comm. R.R., avai/able at http://www.cidh.org/countryrep/Jndigenous-lands09/Chap.l-Il.htm. 22 See Letter fram Anwar Kemal, Chairperson, Committee on the Elimination of Racial Discrimination, to R.E. MI'. MinelikAlemu Getahun, Ambassador, Permanent Mission ofEthiopia (Sept. 2, 2011) (urging the state party to consult 01' seek prior, free, and informed consent of the indigenous community before carrying out projects that would have negative impacts on their community's livelihood); see a/so JI A Comt. R.R., Judgment, Xákmok Kásek Indigellous Cornmunity v. Paraguay, Merits, Reparations, and Costs, Aug. 24, 2010, Ser. e No. 214 (2010), para. 182. '3 General Recommendation XXIII (51) concerning lndigenous Peoples, adopted at the Committee's 1235th meeting (Aug. 18, 1997), UN Doc. CERD/C/51/Misc.13/Rev-4, at para. 5 '4 l/A Comm. R.R. Report No. 75102, Case 11.140, Mary and Carrie Dann V. United States, para. 130 n. 97 (2002). 'S CERD Early Warning Guidelines, sup)'a note 4, paras. 12(b), (h). ,6 lCERD, supra note 13, mt. 5(d)(i), (e)(vi). '7 Id. alt. 2(C).

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life,28 CERD has explained that the duty of consultation is a positive obligation, and ought to be undertaken vl'ith a viewto seeking consent,29 Further, CERD has deelared in the past that this obligation relates to specific and general ways in which traditionalland will be affected. Examples given of specific action inelude logging on a specific piece ofland 01' a palticular eminent domain taking. However, the requirement of general consultation means that states must carefully consider their actions at a very bl'oad level, l'egal'dless of whether or not thel'e exists any immediate 01' obvious harm.30 Indigenous peoples must be entitled to enforce any tl'eaties 01'

agl'eements entel'ed into in the past,31 but the general duty requires states to take steps beyond this and acknowledge the particular respect owed to indigenous peoples. It should be noted that while these rights, and several other rights found within this brief, interrelate with rights found in the UNDRIP, CERD has deelal'ed in the past that when dealing vl'ith the indigenous peoples, nations must use the UNDRIP as a guide fol' intel'pl'eting and understanding obligations found in ICERD.32

16. Pal'agl'aph 12 of the CERD Urgent Action and Eal'ly Warning guidelines states that CERD will take action in cases "requiring immediate atlention" and that cases vl'ill be assessed on the basis of theil' "gl'avity and scale". Thl'oughout the brief it will be continually explained that this situation is ongoing, but it is worth noting up frant. Physical construction itself is complete in many areas. Neveltheless, this does not detract fram the urgency of this situation. Feal', l'epression, and disillusionment amongst indigenous peoples gl'ow on a daily basis because of the border wall. Moreover, the wall's existence is continuously damaging the land, its ecosystem, and the cultural and traditionallife of the indigenous peoples that live al'ound it. Additionally, plans are continually being pl'oposed to fmther reinforce the wall.

17. By examining fil'st the overarching prablem of lack of consultation, followed by in depth case studies of three indigenous tribes living in the Texas border wall area (Kickapoo, Ysleta del SU!' Pueblo and Lipan Apache) it should become elear that the U.S. is in violation of the CERD requirements discussed aboye. The situation as a whole is contrary to the intention and purpose of ICERD and goes against states' duties of ensuring "recognition, enjoyrnent 01' exercise, on an equal footing, of human l'ights and fundamental freedoms in the political, economic, social, cultural or any other field ofpublic life."33 The situation amounts to a denial of equality and freedom

,8 Ullited Natiolls Declal'ation on the Rights ofIndigenous Peoples, G.A. Res. 61/295, 31t. "9, U.N. Doc. A/61/L.67 (Sept. "3, 2007). 29 Concluding Observations of the Cornmittee OIl the Elimination of Racial Discriminatioll, Sixty-Eighth Session, 2006, CERD/C/GUY/CO/14, At paragl'aph 14. Avai/able al http://www.unhchl..ch/tbs/doc.nsf/898586b1dC7b4043c1256a450044f331/c7d1cd668atb4aoec125714c00311bbb /$FILE/G0641177.pdf 30 Request fol' Consideration under the Urgent ActionjEarly Warning Procedure to Prevent Irreparable Harm to Indigenous People's Rights in Papua New Guinea, submitted by inter alia the Forest Peoples Prograrnme, para. 19 (Feb. 2007), avai/able al http://www.fol'estpeoples.ol'g/sites/fpp/files/publication/2011/03/png-Cel'd-2011-ew­ua-final.pdf. 3' United Nations Declaration on the Rights ofIndigellous Peoples, G.A. Res. 61/295, a1t. 37(1), U.N. Doc. A/61/L.67 (Sept. 13,2007). 32 Concluding observations of the Committee on the Elimination of Racial Discrimination, 72nd Session, (2008) United States of America, at para. 29, available at . http://wwW1.umn.edu/hUlnan¡ts/CERDConcludillgComments2008.pdf. 33 ICERD, supra note 13, arto 1.1.

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from discrimination,34 and is generally a denial of civil rights and recognition of communal juridical personality, an indigenous peoples' collective right to recognition before the law. The U.S. government has failed to take "special measures" owed to ensure indigenous peoples can use land according to their own traditions.35

General Issue - Lack of Consultation

18. The U.S. government's lack of required consultation with indigenous peoples and failure to obtain their consent has had a deep impact on every indigenous community in the area. Lack of consultation will be considered at a generallevel, but also later in specific sections regarding each of the three tribes. The internationallaw requirements of consultation and an analysis of the effects of legislation and policy have already been discussed. However, the U.S. government also failed to meet recently created domestic requirements.

19. In 2008, Congress amended the Secure Fence Act, creating obligations regarding consultation with indigenous peoples. DHS was expected to consult with affected property owners, indigenous tribes, and local governments regarding construction of the border wall in order to minimize the impact on the environment, culture, commerce, and quality oflife in areas considered for the border wall. The legislation also required the DHS to perform an analysis of the "possible unintended effects on communities."36

20. There is much evidence to suggest that none of the aboye steps were taken. Various invitations were made by several tribes asking that members of the U.S. Congress 01' Texan leaders come into dialogue with border communities in order to discuss the wall and its effects. All of the internew offers were declined.37 In general, DHS claims to have held 20 "town hall meetings" throughout the various border communities.38 It is unclear ifthese actually happened, and certainly the DHS has faced criticism over the issue. The Texas Border Coalition39 has been involved in anti-border-walllitigation and has publicly called the claim of having held town hall meetings "totally false," stating that the D HS' s "public outreach program is a joke." 40

34 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, alto 2, U.N. Doc. A/61/L.67 (Sept. '3, 2007). 35 I/ A Comt H.R., Case 12.338, Saramaka People V. Suriname, Judgment ofNovember 27, 2007. 36 ConsolidatedAppropl'iations Act, Pub. L. No. 110-161, Div. E, Title V, § 564(c), 121 Stat. 1844,2090 (2007) (codified as amended at 8 U.S.C. § 1103 note 102(h) (2006)). 37 Interviews of Eloisa GarcÍa Tamez speaking on behalf of impacted Elders and community members oí El Calaboz Ranchería, conducted by and on file with Margo Tamez. 38 More on the Southwest Borde1' Fence, U.S. DEP'TOFHoMELAl'lD SEC., http://www.dhs.gov/files/pl'Ograms/gc_'207842692831.shtm (last modifiedAug. 20, 2009). 39 According to their website, the group is 'lthe coHective voice of the border communities on issues that affect Texas-Mexico border regían quality af1ife." They represent mally cornmunities, and memhers include several mayors of the regían. More information available at http://www.texasbordercoalition.org/Texas_Border_Coalition/Welcome.html. 40 Complaint at 34, Texas Border Coalition v. Cheltoff, No. 08-0848 (D.C. Cir. May 16, 2008), avai/able at http://newspapertree.com/system/news_article/docllmenl1/2495/TBC_Lawsllit.pdf.

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21. Moreover, internal emails sent between government personnel and acquired by the University of Texas through FOJA requests41 indicate that, due to timing and monetary concerns, rash decisions were made and there was a general consensus that the outreach program was ofthe lowest priority. Emails between Jeffery Self, Southwest Border Division Chief of Customs and Border Patrol, and an unknown individual referred to simply as "Chief' provide evidence of parts of the outreach plan being ignored in favor of expediency. Mr. Selfwrites "1 did approve the Communications Plan and do still think that it is a viable plan ... critical steps were missed and expedited for time savings ... 1 advised that we would be viewed as sneaky and under handed. Sorne Sector [sic] had different opel'ational needs for fence." 42 Reading this in light of the aboye aIlegations made by the Texas Border Coalition, it becomes apparent that critical steps of consultation were omitted, and that this was known to parties within the government whose job it was to undertake these steps. Even if consultation was undel'taken, it was not done so in a cooperative manner, 01' one which sought consent.

22. Further evidence can be found in a reply to a FOIA request from Professor Denise Gilman of the University of Texas. 43 The request was submitted to the Army Corps of Engineers CACE), the group responsible for the wall's construction. Professor Gilman requested "surveys, analyses 01' other documents reflecting implementation of the Secure Fence Act as it affects Native American communities 01'

lands."44 In other wol'ds, any documentation pertaining to the national and international obligations of consultation. The response was blunt and telling: "ACE did not locate l'esponsive records in its files."45 ACE recommended that Gilman instead look at their environmental plan on their website.46 The information available is extensive and technical, but somewhat out of date. The most recent information on the Rio Grande Valley Area dates from July 2008.47 The report contends that "consultations with federally recognized tribes are ongoing." 48 The report was confident that consultation regarding "historic propelties" would take place: "Customs and Border Patrol wiIl consult with ... federally recognized tribes ... to avoid, minimize, 01' mitigate adverse effects on historic properties" but that this consultation would nonetheless take place on a "property specific and expedited basis".49 The only tribes specifically referenced in the report are the Kiowa Tribe of Oklahoma and the Comanche Nation.50 This narrow focus could in itselfbe

4' These emails were acquired under the Freedom of ¡nformation Act 1996 (FOIA). The Act creates rights to "obtain access to federal agency records, except to the extent that such l'ecords (01' portions of them) are protected from public disclosure .... " Formore information, see http://www.foia.gov/about.html. 4' Email fromJeffreySelf,SouthWestBorderDivision ChiefofCustoms and Border Patrol,to "Chief' (May 5, 2007) (obtained bythe University ofTexas Working Group via FOIArequest). 43 FOIA Request No. 08-143 (Jan. 4 2011) (correspondence on file with University ofTexas Human Rights Clinic). 44 Id. 45 Id. 46 TI Envi1'onmental Stewa1'dship, CBP.gov, http://cbp.gov/xp/cgovfbol'del'_security/ti/ti_docs/ (Iast visited Mal'. 2, 2012). 47 Envil'onmental Stewardship Planfor the Constl'uctiOll, Opel'atioll, and jWaintenance ofTactical Injl'astl'uctul'e, U.S. DEP'T OF HOMELAND SECo (July 2008), available at http://nemo.cbp.gov/sbi/rgv/pf225_rgv_esp.pdf [hereinafter "Ellvil'onmelltal Stewardship Plan"]. 48 Id. at 8-6. 49 Id. at 8-7. 50 Id. at 8-3.

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considered racial discrimination because of the government' s focus on "federally recognized tribes": federal recognition by an individual state ought not to be determinative ofwhether 01' not a tribe can receive aid from CERD. As will be explained more fully later, lack of federal recognition is of particular relevance to the Lipan Apache tribe.S1

23. It would seem, therefore, that the government intended to carry out its full duties of consultation, but testimonies and FOJA requests indicate that the government did not do so thoroughly 01' effectively. The evidence shows that the government neither fulfilled its domestic obligations of consultation, nor the duties of general and specific consultation recognized by CERD. Consultation requires active participation from indigenous peoples and, with regard to the construction of the border wall, it is clear that the indigenous peoples living along the border feel that they have not been consulted and that their rights have not been respected. Celtainly, consent was never obtained and today there remain no plans to consult with these tribes regarding new projects of extending and reinforcing the border wall.

The Kickapoo Tl'ibe

24. The Kickapoo Traditional Tribe ofTexas is a semi-nomadic tribe living between Texas and Mexico. The tribe is the proprietor of a Federal Indian Land Trust located between the Río Grande Ríver and the town of Rosita South, near Eagle Pass, Texas.S2

25. Information gathered by the University ofTexas at Austin's Working Group on Human Ríghts and the Border Wall from the Texas State Historical Association Handbook ofTexas explains: "the group, which numbers between 625 and 650, spends the major portion of the year in El Nacimiento-about 130 miles southwest of Eagle Pass, Texas-but stilllives a semi-nomadic life that has been adapted to modern economic conditions. In middle to late May most of the residents of Nacimiento divide into family-based bands and set out across Texas and other western states to work as migrant agriculturallaborers. By late October 01' early November the bands make their way back to Nacimiento, where they pass the winter hunting, planting crops, raising cattle, and participating in religious ceremonies."S3 It is therefore imperative that the tribe be able to access traditionallands along both sides ofthe Río Grande Ríver in the Eagle Pass area.

51 See supra para 40. 5' Constitution of the Kickapoo Traditional Tribe ofTexas, available at http://thorpe.ou.edu/constitution/kickapoo/ (last modified Apr. "9, "996). 53 Michelle Guzmall and Zachary Hunvitz, Violations on the Fart of the United States Government of Indigenous Rights Held by Members of the LipanApache, Kickapoo, and Ysleta del Sur Tigua Tribes of the Texas Mexico Border, The Working Group on Human Rights and the Border Wall, University ofTexas at Austin, at 11 (June 2008), available at http:j jwww.utexas.edujlawjcentersjhumanrightsjbordenvalljanalysisjbriefing-violations­of-indigenous-rights.pdf.

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26. The tribe has been considered part of Texas for many years, and the U.S. government officially recognized their land and reservation in Texas in 1983.54 The U.S. government has also officially recognized the semi-nomadic status ofthe tribe. An agreement is codified at 25 U.S.C. § 1300b-13d and outlines the "Border Crossing, Living and Working Ríghts ofthe Kickapoo Traditional Tribe ofTexas." The agreement states "notwithstanding the Immigration and Nationality Act, aIl members ofthe Band [the Kickapoo] shaIl be entitled to freely pass and re-pass the borders of the United States and to live and work in the United States."55

27. The waIl itself does not enter the Kickapoo reservation, but that is not to say that it is not an encroachment on their land and lifestyle. The problem is that the waIl prevents easy crossing between triballands held both nOlth and south of the border, and is therefore in direct violation of the above-stated agreement. The tribe is entitled to move freely without having to navigate past waIls and through checkpoints. The right enabling the tribe to cross anywhere along the border is not only key to their identity as Kickapoo and necessary for access to traditionalland, but is also essential for their livelihood because of the seasonal nature of their work. This amounts to a lack of equal protection under CERD article 5(e)(vi). The state must respect agreements made with aIl of its citizens and cannot disregard those with indigenous peoples.

28. The University ofTexas has received detailed testimony from Kickapoo member Eric Anico describing the ways in which the tribe is and wiIl be affected.56

The inability to move between lands is only one of the ways in which the tribe vl'ill be harmed. After the U.S. established a reservation for the tribe, a burial ground by the Río Grande Ríver carne into existence. The waIl wiIl deprive the tribe of access to the burial ground. This is a complete undermining of good faith by the government and displays a distinct lack of respect. Moreover, the tribe now based in the reservation plans to improve its livelihood and the economy of the area generaIly by turning the area into a tourist attraction and establishing a casino. The waIl wiIl prevent this from happening.

29. Anico also details the traditional ways in which the tribe's culture and land is being encroached upon. He describes the Río Grande River-based Kickapoo rituals that the tribe wiIl no longer be able to carry out. He explains that the tribe must fish in the river for the "drumfish" which cannot be found elsewhere. The bones of the drumfish are integral to Kickapoo ceremonial objects. Even the traditional Kickapoo dwelling is made from canes gathered from the river. FinaIly, the waIl interrupts the migrating patterns of animals such as deer (which the tribe are permitted to hunt): deer ribs are the basis of Kickapoo naming rituals.

54 Constitution of the Kickapoo Traditiollal Tribe ofTexas, available at http://thorpe.ou.edu/constitution/kickapoo/(last modified Apr. 19, 1996). 55 Working Group RepOlt, supra note 11. 56 Letler from Eric Anico, memher of the Kickapoo Traditional Tribe ofTexas, to the Inter-American Commission on Human Rights (Oct. 13, 2008), available at http://www.utexas.edu/law/ celltersfhumanrightsfborderwallj analysisjiac-Eric-Allico-Statemellt. pdf.

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30. Adding to the generallack of consultation discussed aboye, it is clear that the government failed to perform an analysis of the "possible unintended effects on communities" expected under amendments to the Secure Fence Act. When the U.S. government formally assessed the impact of the wal!, the Kickapoo were only mentioned once, and only with regard to the municipal water systems.57 This omission speaks to a generallack of concern and understanding on the palt of the U.S. government. Such a brief mention of the tribe is entirely insufficient and fails to grasp the semi-nomadic nature oí the tribe and the various issues discussed by Eric Anico. The problem could have been rectified with proper consultation or at least 1Nith a more in depth analysis oí the tribe' s situation, as the domestic legislation appears to require. . .

31. In sum, the Kickapoo Oike al! indigenous border communities) have been deeply affected by the lack oí consultation in the border area. Consultation is required by CERD íor general and specific interferences with indigenous peoples' rights. Statements made by Anico prove general effects on the tribe. The lack oí consultation was not made up for by the whol!y inadequate analysis oí municipal water systems. Moreover, the U.S. directly breached codified agreement 25 U.S.C. § 1300b-13d which is itselí a violation oí obligations under UNDRIP and CERD. Together, this displays a lack oí the unique respect for the indigenous way oí life discussed by CERD. The Kickapoo are the subject oí racial discrimination in that their culture and way oí liíe are not being respected. The building and potential expansion oí the wal! affects them in ways it would not affect a non-indigenous individual and the government has ignored this. Immediate attention is required in order to limit and rectify this racial discrimination and is justified by the early warning and urgent action procedure guideline regarding encroachment oí indigenous land.

Ysleta del Sur Pueblo (Tigua)

32. The wal! has had similar adverse effects on the y sleta del Sur Pueblo tribe oí El Paso. The tribe currently numbers 1,600 and resides primarily in a reservation consisting of two housing communities and several tracts oí land in the El Paso area ofTexas.58

33. The tribe has a complicated history with Texas. The tribe's ancestral home, Gran Quivera, was started around 800 AD in the Manzano Mountains nOlth oí El Paso. The increase oí Spanish settlement throughout the 1600s íorced the tribe to relocate to various sites along the Rio Grande River .59 While the tribe and its new settlement were ful!y recognized under Mexican rule, the tribe was denied rights to almost al! oftheir land in the mid-19th century when the Texas legislature passed a series oí incorporation acts. These acts partitioned official!y recognized land and conveyed it to new applicants. It has been suggested that the town ofYsleta was

57 Environmelltal Stewardship Plan, supra note 47, at 10-2. 58 Guzman, supra note 54, at 13. 59 RA1'lDY LEE EICKHOFF. EXlLED: THE TIGUA INDlANS OFYSLEl'A DEL SUR 19 (1996).

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illegaHy incorporated in 1871 as it incorporated the entirety of the y sleta Grant. This caused much relocation among the tribe to smaH plots in the surrounding area.60

34. The federal government only officiaHy recognized the tribe and its land in 1987.61 The Tigua are primarily located in two housing communities and several tracts ofland in the El Paso area of Texas. The tribe thrives on carrying out a diverse set oftribal enterprises providing employrnent for the tribe's members and members of the El Paso community. According to the tribal couneil these economic activities have been prosperous for nearly 40 years and tribal business remains dedicated to the common goal of self-determination and self-governance.62

35. The tribe has been using sites along the Rio Grande River in a traditional manner for 300 years. A recent federal study commissioned by the U.S. Department of the Interior and conducted by two historians with expertise in Spanish colonial relations with American Indian peoples confirmed the important historical relationship between the Tigua and the land and river in the El Paso area.63 This study spurred the U.S. government to sign an agreement in January 2007, accepting responsibility to aid the tribe in developing any potentialland and water rights claims and to "take actions consistent with those rights. "64

36. Construction of the border waH completely severs the tribe's access to these traditionallands and goes against the policy laid out in the 2007 agreement. Maps of the waH compared to maps of the reservation clearly show the waH running directly alongside the reservation and a clear cutoffbetween the reservation and the river.6s

The waH run directly through their traditionalland, and cuts off any access they previously had to the Rio Grande River and their traditional sites.66 The Ysleta del Sur Pueblo have strong connections with the land surrounding the river and the border waH has prevented them from properly carrying out traditional ceremonies including new-year ceremonies and induction of tribal officials. The tribe was party to large-scale litigation attempting to obtain injunctive relief to stop the construction of the wall. The litigation raised a constitutional challenge based on the waiver oflaws discussed aboye. However, the litigation proved fruitless and was quickly dismissed after "careful consideration" of the situation and a technical analysis of U.S. eonstitutionallaw.67 The laek of judicial remedy for those affected is discussed in greater depth below, but it is wOlth noting that ineffective domestic remedy

60 Guzman, supra note 54, at 12.

6, 1987 Ysleta del Sur Pueblo Restoration Aet, Pub. L. No. 100-89, 101 Stal. 666_ 62 Guzman, supra note 54, at 13. 6'Id. 64 Garry Scharrer, Repol't COl1fil'ms Indians' Land Claim, SAl'il AmONIO EXPRESS-NEWS, Jan. 19, 2008 http:j jwww.mysanantonio.eomjne,vsjmetrojstoriesjMYSA012008.olA.lndianland.29b80ea.htrnl. 65 Guzman, supra note 54, at 23 figure 2. 66 Petition for Writ of Celtiorari at 44a, County of El Paso v. Chertoff, 129 S. Ct. 2789 (2008) (No. 08-751) [hereinafter County of El Paso Petition), available at http://mvw.law.yale.edu/doeuments/pdf/Clinics/El_Paso_v _ Cheltoff. pdf. 6, Order Granting Defendants' Motion to Dismiss at 2, County of El Paso et al v. Cheltoff, No. EP-08-CA-196-FM (W.D. Tex. Sepl. 11, 2008), available at http:j jwww.utexas.edujlawjeentersjhurnanrightsfbordenvallflawjgoTI­elpaso-Distriet -Court -Order-to-Dismiss. pdf.

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constitutes a ground for action under CERD' s early warning and urgent action procedure.68

37. The undermining ofthe 2007 agreement regarding land and water rights claims is evident, but the situation is certainly an encroachment of traditionallands regardless of the status of that agreement. Of course, the generallack of consultation and the dubious "tovm. hall meetings" will also have affected the Ysleta del Sur Pueblo. In its totality this amounts to a lack of l'espect for the indigenous way oflife, and intervention is required to protect the rights of this marginalized group suffering severe discrimination.

Lipan Apache

38. The third tribe to be affected by the border wal! is the Lipan Apache (01' Ndé). The border wall currently bifurcates the community of Ranchería El Calaboz in Cameron County, Texas, and construction is continuing.69 This traditional Ndé land is owned by Dr. Eloisa Tamez, a Lipan Apache elder, and is home to several descendants of the original Lipan Apache.70 The Lipan Apache are well known for their history in Texas and northeastern Mexico. Nonetheless, the Lipan Apache remain federal!y unrecognized, making the border wall situation far more worrying for them and spreading afear that their tribal identity may be lost altogether. This brief was prepared in close cooperation with the Lipan Apache, thus the sense of urgency necessary for CERD intervention is most apparent here, with statements from tribe members documenting problems that are occurring on a daily basis. This is not to say that similar problems are not occurring with the other tribes referenced aboye. The Lipan Apache should properly be viewed as an example - as a case study - for day to day discrimination being faced by every border wal! community.

39. The Lipan Apache are descendants ofNdé buffalo hunters who cal! themselves the Cúelcahén Ndé or "People ofthe Tall Grass" or Ndé, which means "the people." The term Apache actually carne from Spanish settlers who gave the name to Ndé buffalo hunters who settled in West Texas. The tribe was fiercely protective of their land and culture, but settlement in the Rio Grande Val!ey area took place after many battles with Spaniards and their allies. 71 The Lipan Apache would take refuge in "rancherÍas" (smal! rural settlements) created by Spanish land grants. Over the years

68 CERD Early Warning Guidelines, supra note 4. 6, Formalletler oí complaint from Eloisa Tamez to Coloncl Muraski, U.S. Army Corps oí Engineers (Oct. 30, 2011)

(on file with University oí Texas Human Rights Clinic). 70 Guzman, supra note 54, at 7. 7' In fact, it has heen suggested that the U.S has no claim over much of the Lipan Apache's traditionalland. In recent years Ndé scholar and leader Dr. Margo Tamez has re-elevated the critical issue of Lipan Apache aboriginal title. She argues that there was never an official ceding of the land to the U.S. and therefore the U.S. has no authority to build the border wall across the affected Ranchería. If confirmed, this would provide extra grounds for arguing the border wall is a violation ofhuman rights as the U.S. would be eucroacbing on land outside of its territOly. See Denise Gilman and Margo Tamez, Brick by Brick: Using Human Rights and Critical Perspectives olIndigenous Peoples' Social Movements to Build MomenlUm against the Texas/Mexico Border Wall, in HUMAN

RIGHTS DEEP INTHE HEARTOF TE.XAS '3-'5 (Shannon Speed ed., 2009) ("Ndé never ceded culture, identities and presence in the traditional territOlY. Nor did Ndé cede the land. Ndé conceptualize decolonizing nativist fictions a key component of a critical human rights standard for dismantling the wall. This opens up critical space for constructing the recovely oflands and territories through redress.").

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of settlement, the Lipan Apache genealogy beeame mixed with that of the Basque, Spanish, Tlaxealteea and Nahua hidalgos, and settlers, and aeeordingly there is a mix of heritage, culture, and surnames.72

40. Lipan Apache have faeed a history of disrespect and broken treaties.73 The tribe has borne witness to attempts to undermine land grants and their "Riparian [water] Rights." The Lipan Apache used water from various points along the Rio Grande river for erop irrigation. Aeeording to Ndé and originario Elders including Eloisa Tamez, these rights pre-date Spanish and Mexican law of the 18th and 19th

centuries.74 However, during the early Texas period (1836-1865) Euro-Texan settlers ereated water ownership systems which disrespeeted customary indigenous col!ective ownership. Their euro-eentric notions of property were not compatible with indigenous eol!eetive worldviews of ownership and any treaties made between the tribes and Spain and Mexieo were ignored by settlers,?5 This heightened the protective standpoint ofthe tribe diseussed above.-At present, aceording to the U.S. legal system, any rights to water in the area originate with the King of Spain.76

41. The Lipan Apache applied for federal recognition in 1999 but the applieation is yet to be granted. In a 2001 report written for the U.S. Army Corps of Engineers, the U.S. government acknowledged the tribe. The deseription surrounded the issue of "Docket No. 22-0" ofthe Federal lndian Claims Commission. The Commission was established in the 1946 to grant eompensation to Native American tribes whose land had been unfairly taken by the government in the 19th eentury and earlier. The Lipan Apache were granted compensation, but their claim was joined with the claim of the Mescalero Apache Tribe.77 Thus, aeeording to Lipan Apache knowledge keeper Daniel Castro Romero, Jr., the issue of the Tribe's identity as a unique entity vvithin U.S.law has been left "in limbo."78

42. As wil! be evideneed, the border wal! situation is causing members of the tribe to leave their traditionalland. Lack of federal recognition justifies coneerns that the

72 Guzman, supra note 54, at 8. 73 Enrique Gilbelt-Michael Maestas, Culture and History ojNativeAmerican Peoples ojSouth Texas, Ph.D. Dissertation, University ofTexas atAustin, 2003 (disCllssillg indigellous peoples and bl'oken treaties generally: "Discoul'se regarding broken t1'eaties pl'ovides a frame oí reference by which the governments of Spain, the Republic ofTexas, aud the United States are held in contempt dne to their dishonorable and ruthless condnct against Native American peoples. This discoul'se ofbroken treaties is another way that Native peoples in San Antonio express their knowledge about disenfl'anchisement and exploitation of their ancestrallands. "). 74 Nádasi'né Ndé Isdzáné Begoz'aahí Shimaa Shiní Gokal Gow Goshjaa ha'áná'idí Texas-Nakaiyé Godesdzog, Returning LipanApache Women's Laws, Lands, and Power in El Calaboz Ranchería, Texas-Mexieo Border. PhD dissCltation, Washington State University (2010). See Chaptel' 2, "Fl'om Ndé Lenses: An Intel'rogation of 'Apaches' and 'Enemies' in Eal'ly to Late Colonial Spain, 1525-1821," 54-151. 75 Id. See Chapter 4, "Necropower and Necl'opolitics: The Violent Landscape of the Texas Imaginal'Y," 225-300. ,6 See COlll't Histol'y, Fourth Comt of Appeals, avai/able at http://www-4lhcoa.courts.state.tx.us/coUltfhistory.asp ("Later, the comt addl'essed riparian rights in Adjudicatio1l ojWatel' Rights in Medina Rivel', 645 S.W.2d 596 (1982), rev'd, 670 S.W.2d 250 (1984). In this case, the Court had to decide the ownership of water in the Medio Creek, a non-perennial waterbed. Lackland AiI' Force Base's waste disposal system utilized the creek, and a ranch OWllel' had dammed up the arroyo to create a lake. Justice Blair Reeves, in a dissenting opinion, traeed the riparian rights law to the King of Spain. The Texas Supreme Comt reversed the COUlt's majority opinion, and adopted Justiee Reeves' analysis."). n Guzman, suprQ note 54, at 9. 78 Telephone interview conducted by Dr. Margo Tamez with Daniel Castro Romero, Jr. (Dec. 9, 2009).

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tribe's identity may become lost. Lack of recognition by the U.S. government cannot be an obstacle to international protection, especially given indigenous peoples' right to self-determination,79 Dr. Eloisa Tamez owns Ranchería El Calaboz, which is traditionalland of the tribe. Dr. Margo Tamez, daughter of Dr. Eloisa Tamez, has traced her paternal and maternallineage and can identify her bloodline as Lipan Apache.80 Ranchería El Calaboz should be protected in the same manner as any other federally recognized reservation. While it is owned by Tamez, the land is vital to the tribe as a whole. U nderstanding this is critical to appreciating the following argument, and understanding that any action taken against Tamez affects the entire Lipan Apache.

43. The issue oflack of consultation is again presento The government exercised its right of eminent domain ayer the Ranchería El Calaboz, and sought "immediate access to land and the ability to take down structures, bore holes, destroy plantings and crops, and take such other measures as contractors of the Department of Homeland Security may consider necessary to survey the border for construction of a fortified fence .... "81 Tamez challenged the takings on behalf of herself and many other landovmers in the area, but her claims were dismissed on the grounds that it was an invalid challenge to sovereign immunity.82 The claims contended that DHS misrepresented the law to the landowners in the area and exaggerated what power they had under U.S. law, issuing "certificates of acceptance" for the requested access and not fully explaining the limitations of their powers. Tamez's claim directly cited the 2008 amendment to the Secure Fence Act, contending that the nature of these takings failed to meet the stated requirements of consultation.83 Tamez explains that "they took advantage of our malleability, because we do not have the economic and political power to resist authoritarian government."84 It was argued that the government was in breach of domestic obligations of consultation; however, internationallaw requirements of consultation and consideration were obviously also present because of the traditional nature of Ranchería El Calabozo

44. The government still pursues the Lipan Apache land of Ranchería El Calaboz and trespasses on sections it has no entitlement too In 1936 the International

79 United Nations Declaration on the Rights ofIndigenous Peoples, G.A. Res. 61j295, alt. 3, U.N. Doc. Aj61jL.67 (Sept. "3, 2007). 80 Letter of Protest to Valley Morning Stal' Article: "Ranches of Significan ce," NDÉSELF-GOVERNANCE & SELF­

DEfERMINATION EL CALABOZ Rl-.NCHERIA (Mar. 3, 2012), http://lipanapachecommunitydefense.blogspot.comj. 81 First amended complaint at 2, Eloise Garcia Tamez et al v. Cheltoff, No. o8-CV-0555 (S.D. Tex. Mar. 18,2008), avai/able at http://www.lltexas.edujlaw j centersjhumanrightsjhordenvallflaw j govt -tamez-Class-First­Amended-Complaint.pdf. 8, Order at "3, Eloise Garcia Tamez et al v. Chertoff, No. B-08-055 (S.D. Tex. Jan. 27, 2009), avai/able at http:j jwww.utexas.edujlawjcentersjhumanrightsjhordenvalljlawjgovt-tamez-Order-in-Tamez-Class­Litigation.pdf. 83 First amended complaint at 3, Eloise Garda Tamez et al v. Chertoff, No. 08-CV-0555 (S.D. Tex. Mar. 18, 2008), avai/able at http://wIVw.utexas.edu/law j centersjhumanrightsjhorderwalljla,v j govt-tamez-Class-First­Amended-Complaint.pdf. 84 Telephone interview by Dr. Margo Tamez with Eloisa Garda Tamez (Nov. "9, 2011) (on file with Dr. Margo Tamez).

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Boundary Water Commission (IBWC)8S obtained a right of way from native landowners for flood control purposes ayer part of the land. Ownership, at present, remains with the tribe: it is still under contestation as an amount of compensation has yet to be determined.86 N onetheless, government personnel are often seen on the land.87 The government has offended Eloisa Tamez by offering her $100 for the land: "the United States is offering to acquire these tracts for a nominal value as the fee estate owned by your client is burdened by an easement for flood control purposes. "88 The sum represents a lack of respect for the indigenous nature of the land. Regardless of the IBWC right of way, the land has great cultural value to the Lipan Apache. The IBWC have been uncooperative in response to requests to install traffic gates to regulate border patrol access to the land in question.89 AH of this points to CERD action being required urgently, and proves that despite construction itselfbeing completed in many areas, problems stemming from the border wall are ongoing.

45. The tribe's right to be on traditionalland is being infringed by government agents. In a complaint letter to the Army Corps of Engineers, Eloisa Tamez explains that "I am personally subjected to numerous and frequent invasions and assaults by the U.S. Customs Border Patrol in my private residence, at times, giving me much insecurity, fear, and uncertainty about my personal safety."90 This is not an isolated issue nor is it caused simply by her figurehead status at Ranchería El Calabozo This issue is widespread and there is a general feeling of fear due to the increased presence of the Border Patrol. Daniel Castro Romero Jr. explains in his affidavit attached to this brief that he has been harassed and threatened vl'ith incarceration and interrogation when being present in the border wall area. He has been told that his name is on a "persons of interest list" with the D HS; he and others face harassment purely for being on their own traditionalland. 91

46. Such attitudes of mistrust exist not only regarding government personnel. The attitudes are spreading to the public in general, and in turn to younger members of the tribe. Elders who continually refuse to stop using their lands on both sides of the wall are viewed by government agents as "crazy," "trouble-makers," "impossible," and delegitimized in front of community members and younger generations.92 Margo Tamez describes the pain of having to read comments on websites documenting her mother's anti-border wall efforts, and viewing declarations that her mother ought to

85 This body aims Uta provide binational solutions to issues that al'ise during the application ofUnited State­Mexico treaties regarding boundary demarcation, natianal ownership oí waters, sanitation, water quality, and flood control in the border region." See Home, International Boundmy & Water Commission, www.ibwc.state.gov. 86 U.S. v. 0.26 Acres ofLand, more orless, in Cameron Country, Texas and The Estate ofEloisa G. Tamez, No. 1:200SCV00351 (S.D. Tex. July " 2008). 87 FOl'malletler of complaint f1'0111 Eloisa Tamez to Calouel Muraski, U.S. Army Corps ofEngineers (Oct. 30, 2011) (on file with University ofTexas Human Righls Clinic). 88 Letter from Kennelh Magidson, U.S. Attorney, lo Peler Schey, Attorney for Dr. Margo Tamez (Oc!. 5, 2011) (on file with University ofTexas Human Righls Clinic). 89 Aff. oí Dr. Eloisa Garcia Tamez (ApI'. 10, 2012).

90 Formalletter of complainl from E10isa Tamez lo Colonel Muraski, U.S. Arrny Corps ofEngineers (Oc!. 30, 2011) (on file with University ofTexas Human Righls Clinic). 9' Aff. of Daniel Romero Castro Jr., Heredilary Chief of lhe Lipan Apache (Apr. 5, 2012). 92 Oral testimonies shared with Margo Tamez by Ndé elder Eloisa Garcia Tamez and Daniel Castro Romero, Jr. at El Calaboz Ranchería (June 25-26, 2011).

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be "lynched with barbwire."93 It is worth quoting from her affidavit at length: "The wall sends a clear message, every day, to everyone driving through our community on their way to work, to the city, to the shopping centers, to the golf courses, to their churches ... that somehow, our community along the last 70 miles of the Texas­Mexico border did something tel'l'ibly "wl'ong" (accol'ding to theil' lenses) to "deserve" being incal'cerated in an open-ail' pl'ison structul'e."94 The government's actions constitute racial discrimination, and the notion that this is somehow acceptable is spreading to members of the publico This causes doubt among younger members of the tribe. Because their land is a heavily patrolled and militarized area, younger generations see less and less value in "home" and are becoming disillusioned with traditional ways of life. 95 There is a feeling that if their home is so heavily patrolled it must be an area where "criminal," "cartel," "terrorist," and "illegal" persons are "hiding. "96

47. Indigenous peoples are facing personal harassment because of the border wall and related issues, and this is negatively affecting the manner in which the public views them. Urgent CERD intervention is required to ensure that the U.S. takes action to diffuse the mounting situation of racial discrimination that the border wall is causing both internally within tribes, and externally amongst the public at large. If conflict and disillusionment reach criticallevels, the future of the tribe may be threatened.

48. In response to the trespasses at Ranchería El Calaboz, Eloisa Tamez has sought help from local police forces. However, she was told by law enforcement that they were powerless to help, because DHS had specifically ordered that they not step in to assist local residents against those individuals building the wall. Moreover, Margo Tamez explained that Eloisa Tamez has recently admitted that she is on the verge of giving up and leaving her land. Speaking solely in her capacity as a Lipan Apache member and not as an activist 01' party to this brief, Margo Tamez explained that "when elders leave our community, this is how our community dies."97 The affidavit from Eloisa Tamez indicates that she is seen as a pillar of resistance and strength amongst the Lipan Apache, throughout the border community in general, and even for First Peoples in Canada.98 CERD action is urgently required: Eloisa Tamez herself is a vital connection to the land and to indigenous identity, and her position at El Calaboz Ranchería is injeopardy.

49. If members of the tribe begin to leave the land, this would seem to be a confirmation of the notion that the tribe is somehow "wrong" to be on the land. The U .S. government's actions have encroached on part of the traditional indigenous land: a criterion for CERD's early warning and urgent action procedure. Moreover,

'3 Id. at page 11

'41d. 95 Oral testimonies shared with Margo Tamez by Ndé children at El Calaboz Ranchería (Jnne 24-26, 2011) (in order to protect the rights of indigenous children, names wil! be withheld in accordance with the principIes and protocols of affected clans). ,61d. '7 Telephone interview by the University ofTexas Human Rights Clinie with Dr. Margo Tamez (Feb. 7, 2012). ,8 Affidavit of Dr. Eloisa Garcia Tamez (Apr. 10,2012).

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their subsequent actions, including their general disrespect for traditionalland and rights, are forcing critical members of the tribe to leave. If illegitimate government actions are making it unreasonably difficult for indigenous peoples to remain on their land, this is an encroachment. The lack of federal recognition makes the situation al! the more troubling. The tribe's connection to the land is critica!.

50. This erasure of identity was heavily discussed at the summer 2011 indigenous peoples' gathering in El Calaboz Ranchería. Spokespersons from across the Rio Grande Val!ey area described the tribe's intrinsic relationship with the land and spoke ofthe need to recover a contemporary identity for the Lipan Apache.99 They spoke of how indigenous oral history and creation and survival stories are connected to the land. lOo They explained the impOltance ofthe identification and visiting of sacred sites, including burial sites and ritual feasting sites used for the consumption of "First Foods."lOl To give specific example of how the wal! is preventing this, Steven A. Fernandez, Band Leader of the Kune'Tsa Ndé Band of the Lipan Apache Nation, the lineal cousins of the Cúelcahén Ndé clan, has described the "disheartening" experience of the border wal!. He describes that the border wal! has created "invisible lines on a map" which "continue to disrupt the lives of those who practice and live in the traditional manner of their indigenous ancestors." He explains that supplies for traditional medicines essential to traditional ceremonies are dwindling on the Texas side ofthe border wal!.102

51. Traditional identity is also threatened by unjustified bureaucracy. The rights of indigenous peoples to access their traditionalland are constantly being infringed - as MI'. Romero puts it, the tribe is forced to "prove our Indigenous identities to bureaucrats and papel' pushers."103 He discusses that elders and other knowledge keepers have been physical!y separated from his branch of the Lipan Apache, and that they now have to go through "border crossing red tape" in order to access them. He explains that this places his indigenous identity in a fragile position and that the tribe is finding it difficult to remain in contact with its identity. 104 Fernandez further explains that "[s]ome of our traditional knowledge lies with those on the other side of the border and we have now become limited in our access to those elders who may be able to provide us with the knowledge and history of our ancestorS."105

52. Historical identity is also at risle Lipan Apache members have found evidence that the wal!'s construction is damaging ancestral use and burial sites. Construction required that 8-10 foot deep trenches be dug out of the ground in order to build foundations. The earth from these trenches was removed using large-scale

99 Handwritten notes taken by Cynthia Bejarano and JeffShepherd at El Calaboz Ranchería (June 24-26, 2011)

(on file with DI' Margo Tamez) 100 Id. 101 Id. 102 Testimonial Letler from Stevell A Fernandez to Dr. Margo Tamez (Mal'. 12,2012) (on file with University of Texas Human Rights Clinic). <03 Aff. of Steven Fernandez, leader of the Kune' Tsa NdejTu'Tssn Nde Band of the Lipan Apache Nation ofTexas (Apr. 11, 2012). 104 Id. 105 Testimonial Letter from Steven A Fel'uandez to Dr. Margo Tamez (Mar. 12, 2012) (on file with University of Texas Human Rights Clinic).

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machinery and abandoned like a heap oftrash. In among these heaps was found the presence of traditional use and household objects of Lipan Apache ancestors. Indigenous archaeologists are deeply concerned about what else might be lying beneath the wall 01' has been (and vl'Íll be if construction of the wall is allowed to continue) disrespectfully tossed around or damaged by government machinery. The government of the U.S. is displaying a lack of respect for the rights, land, and traditions of the Lipan Apache. Demonstrative of the problem, the tribe has been reluctant to release further information on this topic for fear that the government will remove evidence.106 Swift CERD action could allow tribe members the oppOltunity to protect these historical objects.

53. Finally, the border wall has had a significant detrimental effect on plants and animals integral to the Lipan Apache's way oflife, many of which are endangered. Research has shown that that there has been a severe decline in biodiversity in the area surrounding the wall, as the wall acts as a serious barrier to water, mating paltners, and nesting grounds. This severe habitat fragmentation has led to the area being classified as a "dead zone."107 Daniel Castro Romero Jr. explains that the government has actively taken steps to reduce plant life in the area by spraying herbicides similar to those used in the Vietnam War. Romero Jr. explains that there is a feeling amongst Ndé that this is pmt of a wider program intended to discourage indigenous peoples from accessing land that they have a right toJos It is apparent that, although construction of the border wall was initially unjustified and unacceptable, its construction was merely the beginning of a wider system of rights violations that are ongoing and require CERD's intervention.

54. In sum, the Lipan Apache's indigenous traditions, culture, and survival prospects have deteriorated in the shadow of the wall. The wall is causing continued mental and physical stress, and problems are currently on-going as tribe members demand redress and restitution. Lack of consultation is present again here, as is encroachment on indigenous land. The fact that the tribe is federally unrecognized within the United States increases their need for protection from CERD. Testimonies from the tribe show that there is fear that the tribe, if forced to leave the land, might dissolve altogether and their history and knowledge will be lost to future generations. In her affidavit, Margo Tamez points out that half of her tribe' s people are under the age of 17.109 This makes it apparent that urgent action is required if the Lipan Apache tradition is to be presel'ved for this new generation who should not have to grow up in the shadow of the border wall.

55. Regarding indigenous peoples' rights in general across all three tribes, at every turn the U.S. government has failed in its duty to treat indigenous communities with

", Email from Dr. Margo Tamez to the University ofTexas Human Rights Clinic (March 8, 2012) (on file with University ofTexas Human Rights Clinic). "7 Interview by Dr. Margo Tamez with April Colte at El Calaboz Ranchería (June 28, 2011). April Cotte is a human l'ights activist with specialized training from Outward Bound working in the Jumano Apache cornmunity of Redford, Texas. She studied and documented the level of attrition of flora and fauna along the border wall in El Calabozo ". Aff. of Daniel Romero Castro Jr., Hereditmy Chief of the Lipan Apache (Apr. 5, 2012). "9 Aff. of DI'. Margo Tamez, Co-Founder of ¡he Lipan Apache Women Defense (Apr. 16, 2012).

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respect and dignity. It has failed to take into account the unique relationship these communities have with the land. One cannot forget that the U.S. government cannot achieve its stated purposes (terrorism prevention, illegal immigration control, etc.) with the construction ofthis wall. Ifthe U.S. is gaining little or nothing from the construction of this wall then its effect on indigenous communities is entirely disproportionate and unjustified. Bearing in mind that CERD has declared that obligations must be read in light of UNDRlP, the latter convention expressly states that rights may only be restricted where absolutely necessary"0 - this is not the case here. Moreover, the U.S. has violated internationallaw duties of consultation at general and specific levels. This is in addition to failings of domestic consultation. The government violates these communities' right to juridical personality and their right to full enjoyment of civil rights.11l In doing so, the government racially discriminates against the indigenous communities by "impairing the recognition, enjoyment or exercise, on an equal footing, ofhuman rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."112 There appears to have been a complete disregard for the indigenous way of life and the connection to the land.

56. Mfidavits from members of indigenous groups prove that these problems will continue as long as the border wall stands, as the border wall exists as a symbol of repression, fear, militarization, and marginalization. The U.S. government must take steps to reduce ongoing problems and to reconcile with those who have been discriminated against. Mfidavits from Lipan Apache members Eloisa Tamez and Daniel Castro Romero Jr. point to a much larger problem that can only be rectified by positive attempts at reconciliation by the U.S. government. Both of their affidavits speak of the racial discrimination against indigenous peoples generated as a result of the border wall,u3 Steven Fernandez explains that the Lipan Apache do not feel as though they are being treated as American citizens, that they feel repressed, and that their plight is being ignored,u4 This contradicts the intention ofthe United Nations Declaration on the Rights of Indigenous Peoples, as it effectively acts as a denial of the right to choose to participate as active members of the state."5 Urgent CERD action is necessary in order to prevent further violations of the rights of indigenous peoples, and to go sorne way to repair harm done.

no United Nalions Declaration on the Rights ofIndigenous Peoples, G.A. Res. 61/295, mt. 46, U.N. Doc. Aj61/L.67 (Sep!. 13, 2007) m United Nations Declaration on the Rights ofIndigenous Peoples, G.A. Res. 61/295, mt. 1, 5 U.N. Doc. Aj61/L.67 (Sep!. 13, 2007) ("Indigenous peoples have the right to the full enjoyment, as a collective 01' as individuals, of all human rights and fundamental freedoms as recognized in the Chmter of the United Nations, the Universal Declaration ofHuman Rights and international human rights law,"). 112 ICERD, supra note 13, at arto 1. n3 Aff. of Dr. Eloisa Garcia Tamez (Apr. 10, 2012); Aff. of Daniel Romero Castro Jr., Hereditary Chief of the Lipan Apache (Apr. 5, 2012). n4 Aff. of Steven Fernandez, leader of the Kune' Tsa Nde/Tu'Tssn Nde Band of the Lipan Apache Nation ofTexas (Apr. 11, 2012). "5 United Nalions Declaralion on the Rights ofIndigenous Peoples, G.A. Res. 61/295, alto 5 U.N. Doc. A/61/L.67 (Sept. 13, 2007)

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IV. The placement ofthe border wall, the U.S. government's taking ofland around the border, and the government's policy justifications for the wall are arbitrary and have a racially discriminatory impact on the border communities.

a. The placement of the b07'de7' wall is a7'bitra7'y and disp7'Op07'tionately affects pOOl' Latinos and indigenous peoples.

57. Most of the border between Texas and Mexico is prhiate propelty; however, federal authorities failed to treat all landowners equally during the planning and construction process ofthe wall. To give an example, in 2008 DHS planned to build the border wall through the property of a 76-year-old retiree but skipped the next­door property, which belongs to a Texas billionaire who is a close friend and campaign contributor of former president George W. Bush."6 The same happened when the University ofTexas at Brownsville filed a federallawsuit and DHS agreed to a settlement to avoid construction of a section of the wall that would have divided its campus. However, other Texas landowners had property condemned for wall construction váth little reCOUl'se available, due to the waiver's limitations on appea1.1l7

58. A statistical analysis conducted by the University ofTexas revealed a higher income range and a higher proportion of non-Hispanic and English-speaking households in the gap areas as compared to wall-designated blocks where more Spanish-speaking and Hispanic and Native American households are concentrated."8 The wall was built through sensitive environmental areas, indigenous lands, and small private properties but does not run through larger and more lucrative properties owned by businesses like the River Bend Golf Resort."9 This arbitrary placement by CBP officials adds to the already pervasive racial tensions that exist between the U.S. government and the Latino community. The Inter-American Commission on Human Rights (IACHR) of the Organization of the American States (OAS) has recognized these harmful and dispropoltionate effects of the wall: "The information received indicates that its construction would disproportionately affect people who are poor, ""ith a low level of education, and generally of Mexican descent, as well as indigenous communities on both sides of the border."120 The locations that D HS selected for the wall have a devastating impact on the property of individuals because border residents did not only lose the segment of their properties for the construction of the wall, but also lost access to their propelty on the other side of the wall.'21

116 Melissa Del Bosque, Hales in the Wall, TEx. OBSERVER (Feb. 21, 2008) http:j jwww.texasobserver.orgjal.chivesjitemj15288-2688-holes-in-the-wall. 117_ Neeley, supra note 8, at 146. n8 J. Gaines Wilson, An Analysis of Demogl'aphic Dispal'itiesAssociated with the Pl'oposed U.S.-Mexico BOl'del' Fence in Camel'on County, Texas, http:j jwww.utexas.edujlawjcentersjhumanrightsjhordenvalljanalysisjhriefing-papers.html. 119 Del Bosque, suprQ note 118. '.0 Press Release, Tj A Comm. H.R., lACHR Concludes Its 133rd Period of Sessions, lACHR Press Release No. 46j08 (Ocl. 3', 2008). 121 Working Group RepOlt, supra note 11, at 8.

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59. In 2009, the DHS informed landowners that in sorne areas the new border wall will stand more than a mile from the northern bank of the Rio Grande, and sorne propelties ended up "outside" the wall.'22 This fact violates freedom of movement of those landuwners inside their own country. However, sorne owners received preferential treatment. A few miles up the river, the Landrum family, an Anglo­Settler/Pioneer family, received a large opening on their affected farmland to provide access for their large tractors and other farm equipment to their property on the south side of the wall. '23

60. This issue has also affected property values along the border,'24 especially the southernmost properties that ended up "outside" of the border wall. In the fall of 2011, the U.S. government informed landowners that security gates with locles and secret codes were being considered as an option for properties on the south side of the wall. The decision violates the citizens' right of freedom of movement and residence inside their own country. A recent New York Times article pointed out that giving security codes to civilians would make them (and their families) targets for those immigrants 01' smugglers desperately trying to cross the border .'25

61. The article also states that the "Landowner Reference Guide," a pamphlet distributed by the Border Patrol, explains that the gates will stay open during daytime, though the Border Patrol will have discretion ayer this. "Emergency personnel will have access through the gates (which are designed to unlock in the event of a power failure), but the possibility ofbeing caught on the wrong side of the fence weighs heavily on families which properties are divided by the border fence," the article explains.

62. An email from Southwest Border Division Chief Jeffrey Self reveals that the selection process behind the placement of the border wall was not driven by security reasons, but rather cost and time oriented priorities: "They will not build any fence in any area (urban) where real estate cost are to (sic) high [ ... ] I was advised that funding and timelines are driving this deployment not operational need."126 In another email obtained through a Freedom of Information Act (FOIA) request, a public official stated on August 30, 2007 that: "OBP [Office of Border Patrol] has already expressed concerns over losing the high priority projects on the list in order to build operationally irrelevant segments for the sake of meeting their mileage objective."127

122 Richard Mm"osi, SomeAngl'y Te.YQns Qre Stuck South oftlte Bal'l'iel', Los fu'lGELES TIMES (Feb. 28, 2011), http:j jatticles.latirnes.comj2011jfebj28jnationjla-na-texas-fence-20110228. 123 Interviews of Eloisa Garda Tamez speaking on behalf of impacted Elders and cornmunity members of El Calaboz Ranchería, conducted by and on file with Margo Tarnez. 124 Liz Goodwin, The Te.yalls who Uve an the 'kIexicall side' of the bOl'derfence: Teclmically, we'l'e in the United States', THE LoOKOUT (Dec. 21, 2011), http:j jnews.yahoo.comfblogsflookoutjtexas-arnericans-live-wrong-side­border-fence-christrnas-183312787·htrnl. 125 Osear Casares, Borde]' Fence Upends a Valley Fal'meJ's Lije, N.Y. TIl\lES (Nov. 26, 2011), http:j jwww.nytimes.comj2011j11j27jusfborder-fence-upends-a-rio-grande-valley-farrners-Iife.htrnl. ", E-rnail frorn Jeffrey Self, South West Border Division Chief of Cnstorns and Border Patrol, to David Augilar and Ronald Colburn (Mal'. 22, 2007) (obtained by the University ofTexas Working Gl'OUp via FOIA reqnest) . .., E-rnail frorn undisclosed sender (Aug. 30, 2007) (obtained by the Ul1iversity ofTexas Working Group via FOIA request).

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63. A multi-billion dollar contract was granted to Boeing Company in 2006, which proceeded to outsource the work to a selection of contractors, such as Kiewit,128 SBlnet, a consortium of private contraetors led by Boeing Co., received a multibillion dollar contract in 2006 to secure the northern and southern borders of the United States. U.S. GAO recommended that DHS place a spending limit on the Boeing contraet for SBInet since the company had been awarded an indefinite delivery, indefinite quantity contract for three years with one-year options, but DHS rejected the auditor's recommendation. These companies' foeus on profit as opposed to public interest in palt may explain why such an arbitrary and discriminatory placement of the wall was enforced. '29 .

b. Racial discrimination against minority populations has incl'eased since the process by which the U.S. government took landfor border wall constl'uction was discriminatory.

64. When DHS first sought temporal')' aeeess to border property in late 2007 and early 2008 for the purpose of surveying and mapping the land, it constituted a governmental taking of the land, as the process involved passing temporary land ownership rights to D HS.'30 Sorne owners voluntarily granted the aecess, but if they refused, Seeretal')' Chertoff utilized the Deelaration of Taking Aet to sue for eondemnation,131 Even iflandowners granted access, they oftentimes did not have full knowledge of their rights, sueh as the right to demand compensation,132

65. DHS offieials organized public information sessions only after press coverage and pushback from the community and local government officials raised eoncerns regarding the proposed construetion of the border wall. According to attorney Celestino Gallegos, there were more security agents than eommunity members in those meetings, and people were not allowed to ask questions or make any comments,133 The initial DHS tactic was to send uniformed border patrol officers door to door with side arms, and present people with their offers from the government and request their signature,134 If a landowner refused to sign, DHS threatened the landowner with a lawsuit.'35

66. After these initial takings, the government sought to gain actual ownership of the land to build the wall starting mostly in the summer of 2008 and continuing well into 2009. The government filed new suits for this purpose against those who did not voluntarily give up their land for agreed-upon compensation. Within those suits for possession, the COlllts first eonsidered whether it was proper to allow eminent

128 ROBERT KOULTSH, IMMIGRATlON .A..l'l'D DEMOCRACY: SUBVERTINGTHE RULE OF LAw 105 (2010). 129 Id. 130 Working Group Report, supra note 11, at 5. '3' Id. 132 Id. '33 Aff. of Celestino Gallegos, former Team Manager for the Border Rights Temn at Texas Rio Grande Legal Aid, Ine. (Apr. 16, 2012).

'34 Id. '35 Id.

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domain and looked at the procedural compliance and showing of government purpose. Eminent domain powers enable the government to "take property for public use 'Nithout the owner's consent upon makingjust compensation."136 Once the land was given to the government, the cases were set for determinations as to compensation. This "expedited condemnation process [denied] property owners access to due process and a fuI! tria!' "137

67. The construction of the wal! in the Texas region has been of great concern as the Texas border is more populated than the border are a of other states and the construction of the wal! thus affects more landowners. Most importantly, the authority granted by the federal government to the DHS, in the interest of national security,'38 combined with the process and construction of the border wal! has caused, and is continuing to cause, irreparable harm to the border communities, specifical!y the low-income residents of Latino descent and indigenous tribes. These communities, in general, lack both the power and resources to effectively resist 01'

dispute the taking of their land within the U.S. judicial system.'39 The most notable effects are that communities have been deprived of vital access to their land, the wal! has separated families and cultures, and the wal! abruptly stops - disproportionately affecting poorer communities' lands over the more affluent landowners.

68. Although the U.S. government has the right, according to internationallaw, to subordinate the use of private property for reasons of public utility and social interestI40-inc1uding national security and the control of immigration-it has not done so in a way that comports with international human rights law. '4' Forced taldng of land to al!ow the construction of a border wal! that runs through private property was not the least restrictive, least onerous means of achieving the national security and immigration control goals ofthe government. Multiple pieces oflegislation, press releases, policy briefings, and statements by DHS recognize the availability of less intrusive measures for securing the southern border of the U nited States. Those that are official!y recognized and employed by DHS inc1ude the fol!owing: unattended ground sensors, truck-mounted mobile surveil1ance systems, remote

136 PETER MEDOFF & ROLLY SKLAR, THE STREEI'S OF Hap: THE FALLAND RISE OF Al'/" URBAN NEIGHBORHOOD 113 (1999).

137 KOULISH, supra note 130, at 117. '38 Fact Sheet: The Secul'e Fe"ce Act of 2006. Official Press Release from the Office of the Press Secretmy (Oct. 26, 2006), available at http://georgewbush-whitehouse.archives.gov/uews/releasesj2006j10j20061026-1.html. '39 One of the possible challenges that could be raised is a constitutional equal protection challenge to eminent domain. However, it is extremely difficult to raise such a challenge. The claimant must show intentional discrirnination (l'ather than disparate impact), that the government has not established a compelling governmental interest in effectuating the discrimination, and that the discriminatory actions are not narrowly tailored to meet that goal. Only oue case, in Eagle Pass, Texas, argued discrímination because of the difficulty in doing so. Most elaimants chaHenging the border waH argued procedural problems, due process problems with the Cheltoff waive1's, and compensation issues. '40 See IACtHR, Case of Salvador-Chiriboga v. Ecuador, PreliminaIY Objections and Merits. Judgment of May 6, 2008 (only in Spanish), Series C No. 179, para. 60 (explaining that the State, in order to guarantee other impOltant rights, can limit 01' restrict 01' even expropriate property since the right to prívate propelty is not an absolute right). >4' Under § 102 of the Illegal Immigration Reform aud Immigrant Responsibility Act, the SecretaIy ofDHS is authorized to contract for and buy any land adjacent to or in the vicinity of the international border when the Secl'etary considers it essential to control and guard the bOl'der. It also authol'izes the Secretary to cornmence condemnation proceedings if a reasonable purchase price cannot be agreed upon. HRIRA, Pub. L. 104-208, 110

Stat. 3009-546 (1996).

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video surveillance systems, unmanned aerial systems, and fixed- and rotary-wing aircraft to detect; classify, track and respond to illegal border crossings.142

69. By constructing a border wall across land owned by persons living along the Texas-Mexico border, the U.S. government is violating landowners' rights to property and to non-discrimination. The restrictions on the right to property defy the principIe oí necessity because they are arbitrary, discriminatory, and not proportional given that other less restrictive measures were available.143

70. While the Executive Eranch has the power to secure the international and maritime borders ofthe U.S., it does not have the right to do so in a manner that violates international treaties to which the U.S. is a party.144 The U.S. federal government planned to erect an intermittent physical barrier in an arbitrary manner that created racial discrimination and violated the principIes of equal protection. If the U.S. government continues with its plans to reinforce and expand the border wall, racial discrimination will become systematic against minorities in this area.

c. The policies cited by the U.S. governmentjustifying the construction of the border wall are inconsistent, arbitl'al'y, and ineffective.

71. While the effects of the wall are severely damaging for the local communities, the policy reasons behind its construction appear to be a mere pretext as the government's aims are simply unrealistic 01' unachievable. The stated goal oí the Secure Fence Act of 2006 was to "make our borders more secure"145 by preventing entrance to alleged terrorists, unlawful, undocumented immigrants, and drug traffickers.146 In the past five years, the U.S. has continued its policy on border security even though it has demonstrated a repeated failure to correspond with the wall' s stated purpose.147 Furthermore, the construction of a wall is not an effective means by which to resolve these national security concerns.

72. One of the main palicy justificatians for the wall cited by the U.S. government

142 United States Government Accountability Office, Testimony befare the Subcommittees on Management, Investigatiol1s, and Oversight, and Border, Maritime and Global Counterterrorism, Cornmittee 011 Homeland Security, Rouse of Representatives. Secure Border Initiative: Observations 011 Selected Aspects of SBInet Implementation (Ocl. 24, 2007), available atwww.gao.govjnew.itemsjd08131t.pdf. 143 Working Group Report, supra note 11, at 7. '44 Id. 144 It is impOltant to recognize what indigenous peoples are meaning when they refer to their rights to theil' lands and territories. See United Nations Declaration on lhe Rights ofIndigenous Peoples, G.A. Res. 61j295, U.N. Doc. A/61jL.67 (Sepl. 13, 2007) (see specifically: alto 25, "maintain and strengthen their distinctive spiritual relationships ·with their traditionally owned 01' otherwise occupied and used lands, territories, waters and coastal seas ... "; arto 26, "lands and terl'itoriesll

; a1t. 30, "militar)' activities shall not take place in the lands 01' terl'itories of indigenous peoples, unless justified by a relevant public interest 01' othenvise freely agreed \vilh 01' requested by the indigenous peoples con cerned"; mt. 36, "in pmticular those divided by international borders, have the l'ight to maintain and develop contacts, ... with their own members as wen as other peoples across borders ... "; atto 37, "enfol'cement oí treaties, agreements, and other constructive arrangements ... "). '45 President Bush Siglls the Secure FenceAct, Office ofthe Press SecretaIY, The White House (Ocl. 26, 2006, 9:34 Alli), available at http:j jgeorgewbush-whitehouse.archives.govjnewsjreleasesj2006j10j20061026.htrnl. ",6 Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638, § 2. 47 Daniel B. Wood, Bil/ionsfor a US-Mexico borderfence, but is it doing any good?, THE CHRISTIAN SCIENCE MONITOR (Sept. 19, 2009), http://www.csmonitor.com/USA/2009/0919/p02s09-usgn.hlml.

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is that it will stop unauthorized immigration flows. However, the wall is not an effective means by which to prevent 01' control immigration.'48 Inflows of unauthorized immigrants were decreasing even before the construction of the border wall. Entries of new unauthorized immigrants averaged 800,000 ayear from 2000

to 2004, but started a decreasing trend ofless than 500,000 ayear from 2005 to 2008, covering the period when the federal government started to plan and build the border wall. '49

73. A report of the U.S. Government Accountability Office (GAO) admits that part of the decline in apprehensions of undocumented immigrants could have come from sources other than the tactical infrastructure of the wall, like an increase of Border Patrol agents, and because less migrants are entering the country due to the economic downturn. '50 "The border fence is a speed bump in the deselt", the U.S. Border Patrol spokesman Mike Scioli said. "It slows them down long enough for us to respond."151 His statement was a reaction to a video posted on the internet in January of 2011, which documents two young women scaling a section of the border wall in just 18 seconds. Scioli "acknowledged that channeling traffic into unfenced communities and natural areas is done on purpose, as part of the agency' s overall strategy."152

74. Another academic study proved that border enforcement efforts since 1993 have not stopped nor discouraged unauthorized immigrants from coming to the U.S. New physical fortifications and virtual surveillance systems do not have "discernible effect on the overall flow of illegal migrants from Mexico," wrote Professor Wayne Cornelius, who conducted interviews with thousands of undocumented immigrants. These new layers of protection "give people-smugglers an additional pretext for raising fees; divelt clandestine crossings to more remote and dangerous areas, multiplying migrant deaths; cause more unauthorized crossings to be made through legal pOlts-of-entry, using false 01' borrowed documents; and induce more migrants and their family members to settle permanently in this country."153

75. However, half ofthe unauthorized immigrants in the U.S. did notjump a fence 01' walk through the deselt to enter the country. Roughly half of the 11 million undocumented immigrants entered the U.S. with valid visas through legal ports of

'4' See SecuI'e BOl'del' Initiative: Teclmology Deployment Delays Pel'sist and the Impact of BOl'del' Fencing Has Not BeenAssessed, U.S. GovernmentAccountability Office, GAO-09-896 (Sept. 26, 2009) [hereinafrer GAO repOlt]. 149 Jeffrey Passel and DVera Cohl1, Trends in Unauthorized Immigl'ation: Undocumented lriflow Now Trails Legal l1iflow, PEwHISPANICCrR. (Oct. 2, 2008), http://www.pewhispanic.org/2008/1O/02/trends-in­unauthol'ized-irnmigrationj. 150 GAO repOlt, supra note 150. '>' Sean Holstege, Longel', tallel'fencing gives i/legal migl'ants a highel' hUI'dle, THEARrZ. REpUBLIC (Nov. '3, 2008), http:f fmV\v.azcentral.comfarizonarepublicfnewsfatticlesf2008f11f13f20081113borderclimbl113.htrnl. 152 Kevin Sieff, Bl'eaks in Border Fence Have Residents Suspicious o/ DHS's Plans, BROWNSV1LLE HERALD (June 22, 2008), http://wmv.brownsvilleherald.com/newsjborder-87851-fenee­pedro.html. 153 Wayne A. Cornelius, Impacts o/ Border Enfol'cement on Unauthol'ized j\1éxicall Migl'ation to the United Sta tes, CrR. FOR COMPARATlVE IMMIGRATION STUDIES (Sept. 26, 2006), http://borderbattles.ssrc.orgfCorneliusf.

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entry, and then overstayed those visas. '54 The GAO reported that DHS had not adopted a program to track foreigners who had overstayed their visas. '55 Furthermore, the GAO's September 2009 report condemned the DHS for not measuring effectiveness of the border infrastructure and for not conclusively taking steps to demonstrate "effective control" of the U.S. border.'56

76. The U.S. government also cites terrorism prevention as a policy justification for the border wal!. However, the border wal! has not helped in preventing al!eged terrorists from entering this countly. In fact, al! of the 19 terrorists who aUacked the country on 9/11 entered the U.S. through legal ports of entry.'57 AlI but two terrorists gained entrance into the U.S. with valid tourist 01' student visas granted by immigration authorities. Those two exceptions crossed the U.S.-Canada border'58.

77. It has already been demonstrated that the wal! has done liule to realize its stated purpose. The main type of immigration from Mexico and Latin America is comprised ofunauthorized workers and migrants seeking employrnent in the United States,'59 however, evidence suggests that the border wal! is not an effective means to deter this type of immigration and instead simply shifts migrant crossings to those places along the border where there are gaps in the wal!,160 Final!y, it has been noted that drug cartel members have developed strategic maneuvers to counter the government's security measures implemented along the wal!, in order to enable drugs to continue to be smuggled through.161

'54 Fact Sheet: Modes of E11tryfor the U11authol'ized Population, PEW HISPANIC CfR. (2006), http://pewhispanic.orgjfiles/factsheetsj19.pdf. 155 Richard M. Stana, Testimolly Before the Cornmittee on Homeland Security and GovernmentalAffairs, U.S. Senate, Border Secllrity: DHS Progress a11d Challenges in Securi11g the U.S. Southwest and Northe1'11 Borders, United States GovernmentAccountability Office (Mar. 30, 2011), http://www.gao.govjproductsjGAO-11-508T. '56 GAO RepOlt, supra note 150. '57 Ted Robbins, Nearly Half of Illegal Immigrants Overstay Visas, NPR (June 14, 2006), http:j /www.npr.orgjtemplatesjstory/stOly.php?stoIYld=5485917· 1580rianaZill.Cl.ossingBOl.del.S: How Tel'1'ol'ists Use Fake Passpol'ts, Visas, and Otlzer Identity Documents, FRONTLINE, PBS, http:j jwww.pbs.org/.vghhjpagesjfrontline/shows/trailjetc/fake.html. 159 See Kate Brick, A.E. Challinor, & Marc R. Rosenblum, JYfexican and Centl'alAmericall lmmigrants in the United States, MIGRATION POL'y INST. 2011, at 4-5 (June 2011), http:j /www.migrationpolicy.orgjpllbs/MexCentAmimmigrants.pdf ("Illdeed, 60 percent of all ullauthorized immigrants come from Mexico, alld ... [un]authorized irnmigrants make up a similar proportion oí Central Americans in the United States."). ,60 Dellise Gilman, Seeking Brea ches in the Wall: A11 Intematio11al Human Rights Law Challenge to the Texas Mexico Border Wall, 46 TEx. Im'LL. J. 257, 279 (2011) (citillg BLAS NUÑEZ-NETO & YULEKIM, CONGo REsEARCH SERV., RL33659, BORDERSECURITY: BARRIERSALONGTHE U.S. INTERNATIONALBORDER 1-2, 26 (2008)). ,6, WithOllt Strategy: America's Border Securih) Blunders Facilitate and Empower Mexico's Drllg Cartels, TEx. BORDER COAL. (Jan. 12, 2012), available at http:j /msllbcmedia.msn.com/ijMSNBC/Sections/NEWS/z_PersonaljHIlusjTBC%20RepOlt­Without%20Stl'ategy-Final[1].pdf.

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V. There is no adequatejudicial process available to challenge the racially discriminatory impact of the wall, leaving people living along the Texas-Mexico border without any effective judicial recourse.

78. Article 6 of the Convention ensures that states pl'Ovide an adequate judicial remedy for instances of racial discrimination, requiring states to provide "to everyone within their jurisdiction effective pl'Otection and remedies, thl'Ough the competent national tribunals and other State institutions, against any acts of racial discrimination. "162 This right to due process oflaw in regard to judicial and administrative proceedings is also affirmed in the Universal Declaration of Human Rights, which states that "[e]veryone has the right to an effective remedy by the competent national tribunals fOl' acts violating the fundamental rights granted him by the constitution 01' by law."163

79. In regard to challenges brought against the racially discriminatory impact of the Texas-Mexico border wall, the U.S. has not complied with its duties to make available an adequate judicialremedy. There are three main deficiencies in the availability of a judicial remedy for people im pacted by the border wall. First, the government' s use of eminent domain to take property for construction of the border wall cannot be effectively challenged in court. Second, courts have not allowed claims to be brought regarding the racially discriminatOlY impact of the border wall. Finally, Congress has passed legislation allowing D HS to waive any law that impedes the construction of the border wall, including laws that protect indigenous peoples, the environment, and public health and safety. These issues will be examined in further detail below.

80. First, the government's use of eminent domain to take property for construction of the border wall cannot be effectively challenged in comt. U.S. courts give the government broad discretion to take propelty necessary for the implementation of government projects. This often involves the taking of an individual citizen's pl'Operty, which the government can do without the citizen's consent. There are, however, two limitations to this power, found in the Fifth Amendment to the United States Constitution: 1) that the taking must be for "public use"; and 2) that adequate compensation must be paid,164 The United States has defined the "public use" requirement very broadly and comts have interpreted it to mean that the government need only have a conceivable public purpose behind taking the property,16S Additionally, comts tend to defer to legislative judgment on what constitutes a "public use."166 One ofthe U.S. government's main justifications for the construction of the border wall is that the wall is necessary for national security reasons. This justification meets this low standard fOl' "public use." In her

162 ICERD, suprQ note 13, at art. 6. '63 Universal Declaration ofRnman Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 67th pleno mtg., U.N. Doc. Aj81O, arto 8 (1948) [hereinafter Universal Declaration]. '64 Kelo V. City ofNew London, 545 U.S. 469 (2005). '65 See Mt. Vernon-Woodbe1'ly Collon Duck Co. V. Alabama Iuterstate Power Co., 240 U.S. 30, 32 (1916) (equatiug "public use" with "public purpose"). ,66 Id.

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affidavit, Corinna Spencer-Scheurich, an attorney for the South Texas Civil Rights Project, stated that "it was almost impossible to prevent the taking of the land," and that fram her experience as a lawyer, eminent domain is very hard to defend against.'67

81. In 2007, DHS began to seek temporary access to land along the Texas-Mexico border in order to conduct land surveys and mapping. '68 This attempt to gain temporary access to private land constituted a taking, because it required a temporary and partial relinquishment ofland ownership rights to DHS. For those who did not voluntarily grant access to their land, DHS successfully initiated condemnation proceedings in early 2008.'69 Mter the initial surveys were conducted, DHS began the process of obtaining ownership of land along the border for the construction of the wall, making offers ofbetween $4000 and $10,000 for the parcels ofland.'70 For those who refused to sell, DHS initiated condemnation lawsuits. In 2007, DHS initiated condemnation proceedings against Dr. Eloisa Tamez. Dr. Tamez and the Center for Human Rights and Constitutional Law initiated a class action lawsuit, claiming that DHS had not properly negotiated with landowners befare condemning their praperty and that the government's condemnation suits should be dismissed.'71 The case was appealed to the Fifth Circuit, which dismissed for lack of jurisdiction, allowing the government to proceed with the taking,172 A total of 0.26 acres were taken from Dr. Tamez's land for the construction ofthe border wall, severing her access to the southern portions of her land. '73 She has yet to be granted direct access to her property on the south side of the border wall. '74

82. Dr. Tamez's challenge to the government's taking ofher land is a rare case-most affected landowners were unable to challenge the condemnation suits initiated by the government. It is very hard for people to defend against these condemnation suits because they must hire a lawyer, and, if they are unsatisfied with the compensation proposal from the government, they must also hire several experts to appraise their land and argue that they should receive more money.'75 This pracedure is very costly in both time and money, and favors the government since it has many more resources than the average landowner. Celestino Gallegos, a former Team Manager for the Border Rights Team at Texas Rio Grande Legal Aid, Inc., estimates that ayer half of the people whose land was condemned for construction of the border wall were unrepresented by an attorney during the negotiations and

16, Aff. of Corinna Spencer-Scheurich, Regional Director of the South Texas Civil Rights Projec! (AprillO, 2012). 168 Working Group Report, supra note 11, at 5. 169 See, e.g., Complaint in Condemnation, United States oí America v. 1.04 Acres ofLand and Eloisa G. Tamez, Case 1:08-cv-00044 (S.D. Tex. May 28, 2008). 170 See, e.g., Dec1aration ofTaking, United States of America v. 0.43 Acres oí Land and Estate oí Pilar Cabrera, Case 1:08-CV-194 (S.D. Tex. May 28, 2008). '" Aff. of Albelto Mesta, Managing Attol'l1ey for the El Paso office ofTexas Rio Grande Legal Aid (April16, 2012); Notice ofMotion and Motion for Class Celtification, Eloisa Garcia Tamez v. Cheltoff, Case B-08-044 (S.D. Tex. Feb. 6, 2008). '" U.S. v. Tamez, Case 1:08-cv-00044 (5th Cir. Jan. 9, 2009). 173 Aff. of Dr. Eloisa Garcia Tamez (Apr. 10, 2012). 174 Id. "5 Aff. of Celestino Gallegos, f01'lne1' Team Manager for the Border Rights Team al Texas Rio Grande Legal Aid, Inc. (Apr. 16, 2012).

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proceedings.'76 The more affluent landowners, on the other hand, hired lawyers and initiated many complaints, eventuaHy receiving payment of much more money than they were initiaHy offered for their land.m

83. It is highly questionable whether DHS had the authority to take the land for the construction of the border wall, especially considering the lack of clear justification for the wall. However, assuming that DHS had the ability to take the land on which the wall was actually to be built (which we do not concede), DHS exceeded even that authority by taking more land than the wall was actually going to be constructed on. The construction of the waH had the practical effect of cutting off landowners' access to any land they owned that was on the opposite side of the wall. Corinna Spencer-Scheurich noted that all ofher clients had pieces ofland taken from the middle oftheir property, sometimes up to a mile from the actual border. 178 As a result, the taking of property for construction of the border waH has deprived many localresidents of not just their property, but also of their livelihoods. For example, the inability of property owners to directly access large pOltions of their property near the river, which have traditionaHy been used by the communities to graze and water livestock and il'l'igate their craps, has had a negative impact on their livelihoods. Additionally, according to Celestino Gallegos the government felt that it should not have to reimburse landowners for the loss of value of this "no-man's land" between the river and the border waH, since the wall was not actually constructed on that land.'79 Though landowners stilllost access to that land, they were not compensated for this loss in value.

84. Second, courts have not entettained claims regarding the racially discriminatory impact of the border wal!. Currently, under U.S. law there is no means by which victims of racial discrimination can petition the judiciary to receive any SOlt of effective remedy for the discriminatOlY harm resulting fram the border waH's construction. The inadequacy of a U.S. judicial remedy is in part a consequence of the unlimited power given to the SecretatY of D HS and the Attorney General through the Real ID Act of 2005; however, the lack of a judicial remedy is also an inherent inadequacy in U.S. law itself.'80 For instance, U.S. law makes it extremely difficult for a claimant to establish racial discrimination resulting from the construction of the border waH. To establish that the border waH is racially discriminatOlY, the claimant would have to show evidence that, in constructing the wall, the government intentionally discriminated against those living in border communities based on race 01' national origin.'81 This requirement that the claimant show intentional discrimination on the part of the government creates a standard that is almost impossible to meet.

176 Id. mIdo '78 Aff. of Corinna Spencer-Scheurich, Regional Director of the South Texas Civil Rights Project (AprillO, 2012). '79 Aff. of Celestino Gallegos, former Team Manager for the Border Rights Team at Texas Rio Grande Legal Aid, Inc. (Apr. 16,2012). 180 The Real ID Act oí 2005 included a waiver of alllaws neceSSaIy to "ensure expeditious construction of the barriers and roads" related to border construction. 119 Stat. 302 (2005). ,8. See Washington v. Davis, 426 U.S. 229, 235-39 (1976) (establishing the requirement of intentional discrimination in arder to establish a constitutional equal protection violation).

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85. Litigation in the U.S. has not been able to halt construction of the wall because U.S. courts have refused to hear claims for racial discrimination related to the wall and have steadily cut back on meaningful remedies, such as broad injunctive relief, that would mandate government reformo For example, in County of El Paso V.

Chertojf, plaintiffs claimed that the waiver power granted to DHS was (1) an unconstitutional exercise of legislative powers by Michael Cheltoff, the Secretary of Homeland Security; (2) a contravention ofbasic constitutionallawmaking procedures; and (3) a violation of the principIes of separation of powers and federalism.'82 Plaintiffs sought a preliminaty injunction to prevent DHS from constructing any portion of the border wall unless DHS complied with the laws waived by Michael Chertoff, the Secretary of DHS.'83 The COutt refused to grant the injunction, holding, inter alia, that plaintiffs had failed to establish either that preserving compliance with the waived laws outweighs the public's interest in secure borders, 01' that plaintiffs will suffer irreparable injuty if the injunction is not granted. '84 Additionally, in Texas Border Coalition V. Napolitano, plaintiffs filed a preemptive challenge to anticipated condemnations of land for construction of the border wall. '8s Plaintiffs claimed, among other things, that DHS violated the equal protection clause by targeting propelties for condemnation based on "political and other considerations not rationally related to the effective and practical considerations the government is statutorily required to consider when determining where the fence the border."l86 The COutt dismissed plaintiffs' equal protection claim, holding that plaintiffs had not established that they were treated differently from similarly situation propelty owners and that the IIRlRA is not "facially discriminatory, designed to accomplish a discriminatory result, 01' enforced 01'

applied in a discriminatory manner so as to violate equal protection guarantees."l87 As these cases illustrate, COutts have yet to allow any meaningful judicial challenge to the discriminatOlY impact of the border wall. As a result, DHS tontinues to reinforce the border wall without giving affected people the opportunity of challenging the wall's construction. The authority ofthe government to build the wall cannot be effectively challenged and continues unchecked.

86. Finally, Congress has passed legislation allowing DHS to waive any law that impedes the construction of the border wall, without providing the opportunity to challenge these waivers. Under § 102(C) ofthe REAL ID Act of 2005, the Secretary of DHS has the authority to waive "alllegal requirements such Secretary, in such Secretaly' s sole discretion, determines necessary to ensure expeditious construction" of the border wall.'88 This authority has been used widely in the construction of the border wall. For example, in April 2008, Michael Chertoff, who was then serving as the DHS Secretary, waived 36 federal and state laws in order to "ensure the

,8, Complaint at 2, County oí E! Paso, et al. V. Chertoff, EP-08-CA-196-FM (W.D. Tex. 2008). ,S3 Order Granting Deíendants' Motion to Dismiss, Connty oí E! Paso, et al. V. Michae! Chertoff aud U.S. Department oí Homeland Security, EP-08-CA-1g6-FM (W.D. Tex. 2008). 'S4Id. at 27. ,85 Texas Border Coalitiou V. Napolitano, 614 F. Supp. 2d 54,66 (D.D.C. 2009). ,86 Complaint at 27, Texas Border Coalitiou V. Napolitano, 614 F. Supp. 2d 54 (D.D.C. 2009) (No. 08-0848). ,s, Tex. Border Coalition, 614 F. Supp. 2d at 66. ,S8 REAL ID Act oí 2005, Pub. L. No. 109-13, 119 Sta!. 23'.

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expeditious construction" of the border wall. '89 Among the laws waived were the Native American Graves Protection and Repatriation Act,'90 the American lndian Religious Freedom Act,'9' the National Historic Preservation Act,'92 the Archaeological Resources Protection Act,'93 the Antiquities Act,'94 and the Administrative Procedure ACt.'95 While the REAL ID Act thus provided the Secretary with unprecedented authority, it also restricted the available judicial review of the Secretary's decisions. The statute gave U.S. district courts exclusive jurisdiction over claims arising from the Secretary's waiver, but then provided that parties may only appeal a district court's decision to the U.S. Supreme Court.'96 By nature, reviewat the Supreme Court level is only available at the discretion of the Court, and thus far the Court has denied the petitions for certiorari dealing with the exercise of this waiver .'97 Thus, claimants are essentially precluded from appealing the decisions of district comts since the statute strips U.S. Courts of Appeals of jurisdiction. This restriction of judicial review has been one of the bases for the multiple constitutional challenges brought against § 102(C).'98 However, all ofthese constitutional challenges have failed, and have not been able to be appealed due to the very provision that is being challenged as unconstitutional.'99 If the border wall is expanded or reinforced, more land will be taken under the current legislation and without judicial remedies for affected landowners.

VI. The u.S. immigration policy debate is already racially charged, and the construction of the border wall is heightening racial tensions along the border, harming the already marginalized populations that live along the border.

87. As discussed supra Section l, the purpOltedjustification and rationale for why the wall was built is based on little factual evidence. Rather, the wall comes from, and contributes to, an environment of discrimination in U.S. immigration policy that unduly discriminates against Latinos. The construction of the border wall is a representation of the national political debate regarding illegal immigration that has heightened concerns about discrimination against Latinos, including those who were

189 Detel'mination PUl'suant to Section 102 of the JUegal Irnmigration Refol'm and Irnmigrant ResponsibiJity Act of 1996. as Amended, 73 Fed. Reg. 19078 (Apr. 8, 2008). "O 25 U.S.C. 3001 et seq .

. "; 42 U.S.C. 1996 ", 16 U.S.C. 470 et seq. "316 U.S.C. 470aa et seq. "416 U.S.C. 431 et seq. '95 5 U.S.C. 551 et seq. ,,6 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. '97 County of E! Paso v. Cheltoff, No. EP-08-CA-196-FM, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. 2008), cmt. denied 129 S. Ct. 2789 (2009); County of El Paso v. Napolitano, 129 S. Ct. 2789 (2009), celt. denied; Defenders of Wildlife v. Cheltoff, 527 F.Supp. 2d 119 (D.D.C. 2007), cert. denied (2008). ,,8 See County ofE! Paso v. Cheltoff, No. EP-08-CA-196-FM, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. 2008), celt. denied, 129 S. Ct. 27B9 (2009) (rejecting challenge to DHS waiver authority underpinning border wall constl'llction); Order of Judge Hanen, United States v. Tamez, No. B-oB-531 (April16, 2009) (rejecting the arguments made by Dr. Tamez and granting possession of Dr. Tamez's property to the U.S. government); Order of Judge Hanen, Tamez V. United States, Case 1:0B-CV-0555 (Jan. 27, 2009) (dismissing Dr. Tamez's affirmative elass action Iitigation against the government); Tex. Border Coalition V. Napolitano, 614 F. Supp. 2d 54 (D.D.C. 2009) (dismissing elass action Iitigation against the government filed by border municipalities). '''Id.

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born in the United States 01' who immigrated legally to the U.S.200

88. Latino residents along the border have traditionally traveled back and fOlth between Mexico and Texas for social and economic reasons. Many families include nationals from Mexico and the U.S. with family members living on each side of the border and visiting each other regularly, while others travel daily across the border to shop, work, study, al' conduct business. The border wall disrupts this way of life and culture, and harms the economy of many communities along the border.201

89. This kind of discrimination and marginalization also extends to the Native American tribal communities living near the wall. According to FBI statistics on hate crimes, American Indians account for two percent of the victims of racially rnotivated hate crimes, but they only comprise one percent of the total U.S. population.202 Another study from the Department of Justice found that one out of ten American Indians have been a victim ofviolence, arate twice as high as the average U.S. resident. 203

a. The Texas border is an area of income disparities and an economically distressed population

90. In general, U.S. counties bordering Mexico have sorne of the highest poverty rates in the country.204 Texas ranks fourth in the nation with the highest amount of people living below federal poverty lines.2os Specifically, Camero n and Hidalgo counties, where the border wall stands, are two of the rnost impoverished counties in the entire United States.206 Both counties have 35% of the population living below the poverty level, whereas the national average is closer to 12%.207 While the median annual income of American households is $51,914 dollars, the approximate annual median income of the families in the Texan border counties is $31,264.208 Additionally, the unernployment rate along the Texas side of the border is 250% -300% higher than in the rest of the country.209 Border cornmunities generally have

200 Mark Hugo López, Rich Morin, & Paul Taylor, Illegallmmigl'atioll Backlash WOl'l'ies, Divides Latinos, PEW HISPANIC CrR. (Ocl. 28, 2010), http:j jwww.pewhispanic.orgj2010jlOj28jillegal-immigration-backlash-worries­divides-Iatinosj 201 Working Group RepOlt, suprQ note 11, at 12. 202 Susy Buchanan, Thl'ee Chal'ged in Beating of American Indian in Al'izona, Intelligence Report, S. POVER'IY L. CrR., issue 24 (Winter 2006), http:j jwww.splcenter.orgjget-informedjintelligence-reportjbrowse-all­issuesj2006jwinterjindian-blood. 203 Steven W. Pel'ry, American Indiaus and Cl'ime. A BJS Statistical Pl'ofile, 1992-2002, Bureau of Justice Statistics, U.S. DEP'T OF JUSTICE (Dec. 2004). "4 Dan Joseph, Avemge Povel'ty Rate is Twice as Highfol' U.S. Counties BOl'del'ing Mexico asfol' Rest of U.S., CNSN News (Dec. 16, 2010), availabZe at http:j jcnsnews.comjnewsjmticlejaverage-poverty-rate-twice-high-us­counties-bordering-mexico-l'est-us. 205 Texas on the Bl'ink, Texas Legislative Study Gl'OUp, Texas State Legislatul'e, 82nd Regular Session (Feb. 2011), avai/abZe at texaslsg.orgjtexasorithebrinkjtexasonthebrink.pdf. ", U.S. Census BUl'eau: State alld County QuickFacts, U.S. CENSUS BUREAU (Oct. '3, 2011), http://quickfacts.census.gov/qfd/states/48000.html. 207 Id. 208 11lcome, Povel'h) alld Health Insurallce Covel'age in the United States: 2010, U.S. CENSUS BUREAU (Sept. 13, 2011). 209 The United States-j\1exico Borde,. Region at a G/ance, U.S. BORDER HEALTH COMM'N,

http://www.borderhealth.orgjbordecregion.php.

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lower levels of schooling and a larger share of the population that has not mastered English. 21O Approximately 432,000 individuals live in 1,200 colonias, which are unincorporated, semi-rural communities located mostly along the Texas border and marked by substandard housing and a lack of potable water 01' pl'Oper sewage systems.211

b. An immigration enforcement approach has sparked discl'imination against Latinos

91. Nearly half ofthe Latinos in the U.S. repOlted that they were treated poorly in government offices because of racial or ethnic bias, and those who perceive a heavy local government focus on illegal immigration reported discriminatOl'Y treatment from public officers very or fairly often.212 Enforcement of immigration policies had a disproportionate effect on minorities, and much of the increase in the number of Latinos sentenced in federal courts has come from a strengthening of immigration policies between 1991 and 2007.213

92. Last year, state legislators around the country intl'Oduced an unprecedented number of 1,607 bills and resolutions relating to immigrants and refugees that increased racial profiling, including English-only mandates and bans on renting pl'Operties to immigrants.214 Five states - Alabama, Georgia, Indiana, South Carolina, and Utah - approved anti-immigrants laws in 2011 following the example of Arizona's SB 1070.215 The legislation requires law enforcement agents to ask for the immigration status of a person involved in a lawful stop, if they have "reasonable suspicion" that the person is an undocumented immigrant, which allowed racial profilíng. The law also created a state violation for failing to carry an alíen registration documento A federal judge blocked Arizona's SB 1070 months after the legislation's passage, and court challenges based on preemption and civilrights have been filed against those laws in Alabama, Georgia, Utah, and Indiana. An Amnesty International repOlt has found that these state laws and local policies are creating barriers that are preventing immigrants from accessing their basic human rights, including rights to education and essential health care services.216 The report states that federal immigration officials are increasingly wOl'king with state and locallaw enforcement agencies but improper oversight of state and locallaw enforcement has

210 Developing the U.S.-iYIe:tico Border Regianfol' Q Pl'ospel'ous and Secure Relationship, James A. Baker III Institute for Publie Poliey, Rice University, at 5 (April2009), http://www.bakerinstitute.org/news/policy-repOlt-~ .

:m The United States-1vlexico Borde]' Region at a Glallce, U.S. BORDER HEALTH COMM'N,

http://www.borderhealth.org/bordecregion.php. 212 National Survey of Latinos: As Iilegal Immigl'ation Issue Heats Up, Hispanics Feel a Chill, PEW HISPANIC CrR. (Dec. 13, 2007), http://www.pewhispanic.org/2007/12/13/iv-perceptions-of-discrirnination/. ''3 Mark Hngo López & Michael Light, A Rising Share: Hispanics and Federal Cl'i111e, PEwHISPANIC Cm. (Feb. 18, 2009), http://www.pewhispanic.org/2009/02/18/a-rising-share-hispanics-and-federal-crirne/. 2141mmigl'ation Policy Report. 2011 Immigl'ation-Related Laws and Resolutions in the Sta tes (Janual'y-June), NA'r'L CONFERENCE OF STATE LEGISLAWRES (Sept. 19,2011), http://www.ncsl.org/issues-research/irnmig/state­irnrnigration-laws-janUaIy-to-june-2011.aspx. "5 Id. 216 Amnesty International, In Hostile Tel'l'ain: Human Rights Violations iil Immigl'ation Erifol'cement in the US Southwest (March 2012) at 11-12, available at http://www.arnnestynsa.ol'g/sites/default/files/ai_inhostileterrain_032312_singles.pdf.

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led to increased racial profiling.217

93. Through all these actions, U.S. local and state public authorities are compounding racial discrimination against Latinos. One result of these anti­immigrant initiatives is an increase of crimes against this group. Latinos are more likely than whites to become victims of personal crimes such as rape, sexual assault, and robbery, but are less inclined to report these incidents to the police, according to the Bureau of Justice Statistics' National Crime Victimization Survey (NCVS),218 A third of the Latinos who said they would not report those incidents to the police cited fear of repercussions, such as immigration enforcement 01' discrimination, as a reason not to contact the authoritieS,219 The Federal Bureau of Investigation (FBI) repOlted that Latinos were the majority of the victims of hate crimes committed based on the perceived ethnicity 01' national origin in 2010. 220

c. Border residents live with fear due to an increasing military approach at the border.

94. Latinos living in border communities in Texas are especially affected by immigration policies, as well as the construction of the border wall. The number of Border Patrol agents has more than doubled along the southern border since 2004, despite a decrease in illegal crossings along the southern border (which is reflected in fewer apprehensions of undocumented immigrants).221

95. Increasingly, the Border Patrol is taking more of a military approach than a policing approach. Federallaw-enforcement agencies dispatched in the border justify violations against civil rights in order to secure the border. As an example, the American Civil Libelties Union (ACLU) claims that border patrol agents violate the Fomth Amendment of the American Constitution by conducting arbitrary detentions and searches of regular citizens within a 100-mile zone around the external boundary ofthe United States. The organization warns that such tactics invite racial profiling of individuals who pose no threat to U.S. national security.222

96. Local residents can no longer go to local police for harm perpetrated against them by the Customs and Border Patrol agents. Landowners in Cameron County have reported that they have contacted local police to assist them in documented cases of trespassing and destruction of lands, but the official response was that the local police were disallowed from responding to 01' filing a written report about

217 Id. at 11, 38. ,,8 Mark Hugo López & Gretehen Livingston, Low Conjidenee, High Exposure Hispanics and the Criminal Justiee System, PEwH¡sp",,,¡C CrR. (Apr. 7, 2009), http://www.pewhispanie.org/2009/04/07/iii-reporting-erimes-to­the-poliee/. 219 Id. 220 Hate Crime Statistfcs, 2010. Incidents Ql1d Offenses, FED. BUREAU OF INVESTIGATION (Nov. 2011), http://www.fbi.gov/about-us/ejis/ucr/hate-erime/201O/narratives/hate-erime-2010-incidents-and-offenses. '" Obama says borda patrol has doubled the number of agents sinee 2004, POIXTIFAcr (May 10,2011), http://www.politifaet.eom/truth-o-meter/statements/2011/may/lOjbaraek-obama/obama-says-border-patrol­has-doubled-number-agents/. 222 Melissa Del Bosque, Lije in the Constitution-Fl'ee Zone, TEXAS OnsERVER (Feb. 17, 2012) http://www.texasobservel'.ol'g/lalinea/life-in-the-eonstitution-free-zone.

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civilian complaints against the U.S. government along the border wall.223

97. Border community members no longer feel free to lead their normallives. Weapons given to the Border Patrollegitimize a warfare mentality. For example, the Predators, an unmanned aircraft used in the wars in 1raq and Mghanistan, were introduced on the U.S.-Mexico border in 2005, and since then, the drones have logged more than 10,000 flight hours in this area.224

98. Suggestions have be en made to enforce the wall with increased technology, heightened numbers of agents, and potentially even an electric fence. 225 The United States government has every right to close its borders if it so wishes; however, doing so in a way that discriminates against one 01' more groups of people violates U.S. domestic and internationallaws of equal protection. The recent laws and immigration policies that the U.S. government has enacted in the last few years reflect the various ways in which the U.S. government discriminates against Latinos in this country. The U.S. government is thus failing in its duty to prevent public authorities or public institutions from promoting or inciting racial discrimination.

VII. Consideration under the CERD early warning and urgent action procedure is warranted.

99. The situation of the Texas-Mexico border wall constitutes a continuing pattern of racial discrimination against Latinos and indigenous peoples living near the border. The circumstances surrounding the border wall meet multiple criteria under the early warning and urgent action procedure, including: i) adoption of new discriminatory legislation; ii) encroachment on traditionallands of indigenous peoples; iii) a significant and persistent pattern of racial discrimination evidenced by social and economic factors; iv) lack of an effective recourse procedure; and v) lack of judicial remedy. 226

100. First, the wall is a result of the adoption oflegislation and pending plans that have a discriminatory impact, specifically the Secure Fence Act of 2006, the Consolidated Appropriations Act of 2008 and related legislation.227 The U.S. government has failed to take effective measures to review the discriminatOlY impact of its legislation, which is in direct violation of 1CERD Al'ticle 11. 228

223 Interview between Margo Tamez and local Cameron Couuty resident (dne to safety and protection concerns, this interviewee has l'equested to remain anonyrnous). 22'¡ US employs more dl'ones to watch the borde1', Fax NEWS LATINO (Nov. 12, 2011), http:j jlatino.foxnews.comjlatinojnewsj2011jllj12jus-employs-more-drones-to-watch-borderj # ixZZln W lKk7Di. 225 Lucy Madison, Cain: Elech'icfence may be tovel' R exaggeration, CBS NEWS (Oct. 30, 2011) http:j jwww.cbsnews.comj8301-346o_162-2012762ojcain-electric-fence-may-be-over-exaggerationj (while Hel'man Cain acknowledged that the idea of an electric fence might have been an over-exaggeration, he also stated in this alticle that he "wasn't walking away from that [idea]."). 226 CERD Eal'Iy Warning Guidelines, supra note 4. 227 See, infra_. 228 ICERD, supra note 13, mt. 2 ("Each State Party shaH take effective measures to l'eview govel'mnental, national and local poJicies, and to amend, l'escind 01' nullify any laws and regulations which have the effect of cl'eating 01'

perpetuating racial discrimination wherever it exists. U).

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101. Second, the border wall encroaches on the traditionallands of indigenous peoples and their access to the river. The Lipan Apache, Kickapoo, and y sleta del Sur Pueblo tribes were and are still deprived of access to significant parts of their traditionallands. Each group has distinct histories with colonial and state governments, whieh have impacted the current-day identification with custommy territories and use m·eas. The U.S. government did not seek the free, prior, and informed consent of these indigenous communities before encroaching on their traditionallands as required un del' the UNDRIP.

102. Third, the border wall is a fmther manifestation of existing racial discrimination against the pOOl' Latinos and indigenous communities along the Texas-Mexieo Border. The placement of the border wall, marginalization of the pOOl' Latinos and indigenous communities, and new discriminatoty national immigration policies of the U.S. government establish a significant and persistent pattern of racial discrimination along the Texas-Mexico border.

103. Fourth, a lack of effective recourse procedures under U.S. law for the harm caused exacerbates the seriousness of the discriminatory situation faced by pOOl' Latinos and indigenous communities in Texas,229 U.S. law cannot serve as an effective mechanism to protect the rights that have been violated. For example, the U.S. Congress passed legislation giving DHS the authority to overlook laws that are normally in place to protect indigenous rights and minority groups.230 In 2008, the DHS Secretaly used this power to waive 36laws in their entirety, including the N ational Historie Preservation Act,231 the N ational American Graves Protection and Repatriation Act,232 and the American Indian Religious Freedom Act,233 These waivers precluded any possibility of challenging the construction of the border wall on the basis of indigenous 01' environmental destruction.

104. Finally, in addition to the multiple other criteria already described, there is no adequate judicial remedy for the harm inflicted on the border communities under U.S.law. In addition, there is no legal ways to challenge the current plahs to expand the border wall. Although there is pending litigation in a federal court in Texas;34 this litigation does not address the racial discrimination that has and is continuing to occur as a result of the wall' s construction. The litigation alleges that compensation given to property owners along the border was inadequate, and that it was given as a result of coercion and force. This litigation is limited to the issue of the inadequate compensation given to propelty owners for the value of their land, and has be en postponed indefinitely since October 2009 ..

229 CERD Early Warning Guidelines, supra note 4. '30 REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stal. 231,306,8 U.S.C. § 1103. '3' 16 U.S.C. 470 et seq. '3' 25 U.S.C. 3001 et seq. (requiring federal officials to consult with tribal cornrnunities if they anticipate that their activities will have an effect 011 American lndian burials). 23342 U.S.C. 1996 (ensuring American Indians access to religious sÍtes by requiring federal officials to consult with triballeaders). '34 U.s. v. Tarnez, No. 1:08-cv-00044 (S.D. Tex. 2008), available at http://,,~vw.utexas.edu/law/centers/hurnal1l'ightsjhordenvall/18\vjlawsuits-property.htrnl.

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105. The effect that depriving indigenous communities of their land has on their cultural identity constitutes continued irreparable harm under ICERD.235 Indigenous peoples' unique way oflife and close relationship with the land makes "[t]he lands they traditional!y use and occupy [ ... ] critical to their physical, cultural, and spiritual vitality."236 Decisions by CERD and several other international human rights organizations have urged that states take special measures to ensure the fuI! enjoyment of rights for indigenous communities, especial!y with regard to the use of their land as it is crucial in preserving their survival and cultural identity.237 By not recognizing the legal status of indigenous communities on the Texas border, the U.S. government violates these communities' right to juridical personality and their right to fuI! enjoyment of civil rights. 238 In doing so, the government racial!y discriminates against the indigenous communities by "impairing the recognition, enjoyrnent 01'

exercise, on an equal footing, ofhuman rights and fundamental freedoms in the political, economic, social, cultural 01' any other field of public life."239

VIII. Conclusion and request

106. The construction of the Texas-Mexico border wal! has created irreparable and continuous harm through its racial!y discriminatory effects on the communities that live alongside the southwestern border ofthe U.S. The wal! has abrogated these communities' property and land rights, equal protection rights, indigenous rights, and right to juridical personality, and has severely prevented their fuI! enjoyment of fundamental basic rights as guaranteed in the International Convention on the Elimination of Racial Discrimination. The minimum demand of the community is that the wal! be taken down, that the lands be returned to al! impacted people, that there be a formal apology by the President of the United States to the communities affected, and that a Truth Commission be formed to investigate the injustices and to perform necessary redress, restitution, and reparation.240 In the interim, we request that CERD consider the situation under its early warning urgent action procedure.

107. AB Jumano Apache community historian Enrique Madrid noted, "[t]he river

235 Committee fol' the Elimination oí Racial Discrimination, Decision 2(54) on Australia, para. 4, A/S4/18 (Mar. 18,1999); l/A Comm. R.R. RepOlt No. 75/02, Case 11.140, Ma1y and Carrie Dann v. United States, para. 130 n. 97 (2002). 2361ndigenoHs and Tribal Peoples' Rights Over Theil' Ancesb'al Lands and Natural Resoul'ces: Norms and Jurisprudellce of the [nter-American Human Riglzts System, I/ A Comm. R.R., available at http://www.cidh.ol.g/countryrep/lndigenous-Landso9/Chap.I-I1.htm. 237 See Letter from Anwar Kemal, Chairperson, Committee on the Elimination of Racial Discrimination, to R.E. Mi'. Minelik Alemu Getahun, Ambassador, Permanent Mission of Ethiopia (Sept. 2, 2011) (ul'ging the State pa1ty to consult 01' seek prior, free, and informed consent of the indigenous cornmunity before carrying out pl'ojects that would have negative impacts on their community's Hvelihood); see also l/A Comt. H.R., Judgment, Xákmok Kásek Indigellous Cornmunity v. Paraguay, Merits, Reparations, and Costs, Aug. 24, 2010, Ser. e No. 214 (2010), para.182. '3' United Nations Declaration on the llightsofIndigenous Peoples, G.A. Res. 61/295, a1t. 1, 5 U.N. Doc. A/61/L.67 (Sept. '3, 2007) ("Indigenous peoples have the right to the full enjoyrnent, as a collective 01' as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration ofHuman Rights and international human l'ights law."). 239 ICERD, supra note 13, at alto 1.

'40 Margo Tamez, Corifronting the Wall: Ndé Principies & Protocolsfrom El Calaboz Ranchería: lndigenolls Peoples, Knowledge, Land, Tel'l'itol'ies and Human Rights, Emilio Center fol' Indigenous and Human Rights (fOlthcoming).

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· hasncvcl' div;ded us; the rivel' has always brought us together."Z41 Yot, fol' those bonlo!' communities, the wan l10t only divides theln, but has also begul1 to destro)' thcil' livelihoods, indigenollsidentíty, culture, and knowledge systems, depl'íving them of lund and basic necessitjes, and making thcm Uve in a sta te of pe!'petual fear.

y ours l'espcctfulJy,

DI', Margo Tamez Uníversity of Britísh Columbia Okanagnn

L" hltc,'ví,'w hy nI'. i'ibrgn '¡'"",ez \'11th Enrique Maddd in Redford, Texas (August 15,2(07).

40

Mr. Ariel Dulitzk:y, Clinical Professor and Director-Human Rights Clinic c/o Mr. Andrew Nicholson The University ofTexas at Austin SchoolofLaw CCJ1.324B 727 E. Dean Keeton Street Austin, Texas 78705

* ~~'f¡f ---..-

Nclt' .,

Re: Affidavit for United Nations Committee on the Elimination ofRacial Discrimination; Ear1y Warning Measures and Urgent Action Procedures Brief on the Texas-Mexico Border Wall

By way ofNdé tradition, it is considered respectful for a human being to introduce her or his selfby identifYing her or his maternal and paternal family lines, place ofbirth, and who she or he are by way oftheir peoples' relationships to place.

All my ancestors, regardless of c1ass within traditional Indigenous societies, were severe1y colonized through extermination wars, the politics of domination, assimilative processes, violent repression, and forced dispossession. This occurred across four sovereignties (Spain, Mexico, Texas, and the United States). Many ofmy foreparents adapted to colonialist structures, identities, and consciousness as a mode of surviving and adapting to radical and often abrupt changes, severe economic oppression, and violent political conditions imposed upon them as a result of the colonization and industrialization processes ..

In my parents, I found stern teachings and nurturing processes were interwoven. As a result of the time in which they lived (both born in 1935-a time of severe repression) they transferred a great amount oflove along with the strugg1e for survival in a social structure dominated by colonialismo In that, they taught traditional pillars ofIndigenous ways ofbeing, thinking, and interacting, and they taught ski1Is to exist within a system where strugg1es saturated daily existence. My parents were part of a mass shift from the rural to the urban fo1' the ranchería society of the Lower Rio Grande Valley and South Texas, and they resisted complete assimilation almost daily, which is why I think we, as a family living between San Antonio and the rural countryside, experienced so much turmoil when I was growing up.

1

1 feel fortunate that, for whatever reason ofmy personality, my spirit, and my human idiosyncrasies that 1 learned from the 'hearth' and the 'kitchen table' the most important epistemologies and ontologies ofIndigenous consciousness as a result of the many oral storiés 1 listened to and learned in my lifetime. Oral history is not a dead archive; rather, each person contributes personal meaning to it, and being faithful to its details is crucial; even so, the individual story-teHer transmits her spirit into the meaning; and she uses this as a worldview to guide her thinking through, acting out, interpreting, re1ating to, and shaping the reality in her cultural framework, or world view.

1 have been blessed that 1 grew up in a time before the onset of the internet and that the oral tradition practise was still the most common form of transmitting knowledge between generations and between similar or related peoples. 1 am happy to be able to share sorne of this knowledge and how 1 see the Texas-Mexico border waH is a crucial part of a larger history and larger story where Indigenous peoples' experiences and knowledge are at the center ofmy perspective and framework of the re1ationships between ancestral and contemporary stories inherent1y embedded in an unbreakable bond between land and peoples.

1 identifY strongly as part of the process of decolonization, which is a

local-regional-national-transnational-transborder-hermispheric-global

social movement.

The first time 1 heard the term "indigenous peoples" was from my mother, Eloisa García Tamez, many years ago, before 1 myself even used the term as part of a larger expression ofhow my people are related to the land and to this continent.

At that time, when 1 heard her say this word, 1 was not living at home, because 1 was getting my M.F.A. degree at Arizona State University. This was about 2000 or so, when she told me, one time when 1 was just on a short visit, that she was being chased down by U .S. Custom Border Patrol officers when she went walking on the levee. 1 wrote about it in a poem, "My Mother Returns to El Calaboz," and in that poem, 1 discuss how she described her encounter with the U.S. CPB by saying to them, "1 am an indigenous woman, from El Calaboz!" in order to show to them that she is Native American, rooted in the lands there, where aH her ancestors carne fi'om, since time immemorial. This was an important moment for me as a young activist, because it was empowering to hear my mother c1aim her relationship to the ancestral ways ofknowing about inherent ties to the land, and when she used the work 'indigenous', 1 felt very proud to be her daughter, beca use it has been very violent and extreme1y dangerous in Texas to outwardly speak about or to advocate for one's rights to the land and water based upon Indigeneity. Why? It has become c1ear to me, in aH my life-long learning, that to be the 1ndigenous Other in South Texas and north-eastern Mexico is to always be at risk of extreme structural and physical violence. Vehement denial of one's indigeneity has been, according to many people 1 have interviewed in South Texas and the Texas-Mexico border, the on1y way to exist without suffering extreme persecution. When 1 grew up, in the 60s and 70s, most people do not realize that South Texas (San Antonio and aH the way to the border) was extreme1y segregated and quite dangerous for us who were the incarcerated within that open-air colony. That is a little background.

Grass roots Indigenous communities in South Texas and north-eastern Mexico have strongly influenced my upbringing and consciousness to this day. Indigenous decolonization

2

movements from the 1980s, 90s, and into the present, shaped my whole being, which positively affected my education as an Indigenous woman of complex ancestry. 1 claim my fuI! identity, without shame, reservation, or doubt. To do this claiming, from the lands which birthed my peoples, inherently invokes the importance ofself-recognition without apology.

Indigeneity is not a 'blood quantum', nor a fractionated existence. Nor is Indigeneity a 'phenotype', or an 'I.D.' card which scaffold the false legal hierarchy ofa modem-day 'casta' system, whereby Indigenous peoples' human existence in the U.S. and Texas is solely based in the nation-state's arbitrary discrimination against certain Indigenous peoples, in order to eradicate Indigenous land ownership which puts barriers in the way ofbusiness interests.

Indigeneity is lineage and relationship with ancestral knowledge systems, relationships to lands, language, values, dignity and well-being from an Indigenous stand-point. Indigeneity is recognizing, participating, actively engaging, respecting, and being involved in the continuance of one's community. Culture, history, and inherent belonging within one's culture is central to health and harmony, and for Indigenous peoples knowing and health with the land are inseparable.

Knowing and participating in one's crucial relationship with place, and the right to know, to have knowledge of, to gain knowledge of, to re-leam knowledge of, and the right to reclaim and enact knowledge of one's integral relationship to one's ancestors and relevant places is crucially vital for the health and continuance ofIndigenous peoples along the Texas-Mexico border. Indigenous knowledge systems enacted by Indigenous peoples ourselves is at great risk today due to the border wall and all its entangled systems ofviolence which work in tandem to eradicate Indigenous knowledge systems, languages, memory, and enactment of our inherent ties-socially, spiritually, economically, and physically-to our lands, territories, and resources. The border wall could not exist, however, without hate and ignorance, because the architecture ofhate and ignorance depends upon systematized and structured ideology, repression, and oppression in order to maintain the status quo ofIndigenous peoples' ongoing assimilation and intemalized shame to fully express exactly who we are and how this is deeply tied to our lands and resources.

Fear, doubt, negation, shame, and embarrassment have too long influenced my peoples' impression of uso We have had to swallow negative stereotypes of our foreparents for so long and in such saturated ways, and thus, negation and shame are twins which also work to enable the border wall to exist within our lands. Even though many people know in their heart ofhearts that

. the stereotypes of our peoples as 'illegals', 'foreigners', 'Mexican's, 'drug lords', etc., are false, these are ideologies which are built upon older stereotypes which also led to violent persecutions of our foreparents in times past: 'thieves', 'raiders', 'bandits', 'Apaches', 'horse thieves', etc. which are false portrayals melded by colonial domination, violent oppressors, and powerful business interest.

1 am honoured and proud to acknowledge who 1 am, fully, from an Indigenous community perspective, which does not value fractionated identity. True decolonial indigeneity makes a person identity their whole self. Thus, the Ndé system is highly complex, with many clans which comprise our peoplehood. The clan system ofthe Ndé empowers the individual to stand fum on their full being, and the inclusive Ndé system (not the 'closed' Anthropological Indian kinship fiction) acknowledges European contact, exchange, and continuity.

l say all this up front, in order to testify to the continuity ofNdé as survivors ofkilling histories and killing anthropologies. This is a testimony to set the record straight for all readers.

The ongoing struggle for dignity, respect, and harmony, for a complex Indigenous society such as the N dé, who absorbed and included European descent peoples within our social, economic, religious, and physical structures and systems, is an area in which 1 conduct active research. 1 am currently very involved in numerous decolonization projects of my people. One of

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these is the inter-related language revitalization projects ofthe Ndé ('Athabascan'), the Tlaxcalteca ('Nahuatl'), the Nahua hidalgos ('Nahuatl'), and the Euskara ('Basque') who are the peoples who converged in the Lower Rio Grande Valley, in the current-day Texas-Mexico border, and who the Ndé absorbed-or as we say informally-Apache-ified- and who are my ancestors.

Today, 1 am an enrolled member ofthe Lipan Apache Band ofTexas, and 1 am ofNdé, Tlaxcalteca, N ahua, and Basque ancestry, directly descended from Chiefly chief peoples. 1 consider my birthplace, in 'Austin, Texas' to be wholly within the original and unceded Traditional Territory ofthe Ndé, which encompasses over 6.5 million acres ofthe unresolved land claim ofthe Ndé hereditary Chiefly Chiefpeoples, ofwhom 1 am a descendent. The Ndé customary lands have been traditionally considered to exist between the Guadalupe River and the Rio Grande River, the Pecos River and the Rio Conchos, Chihuahua, México, the Rio Conchos and the Rio Bravo River, Tamaulipas, México, and the Rio Bravo, Tamaulipas, and the Rio Santa Catarina, Nuevo León, México.

Traditionallntroduction: Shi Margo García Carrasco Tamez. Shimaa Eloisa Esparza Cavazos García. Shidade (Daasts'a'yé dÍlÍ) Luis Carrasco Rodriguez Tamez. Shichu Lydia Montalvo Villarreal Esparza. Shitsúyé José Emilio Cavazos Peña García. Shich'iné Flavia de la Fuente Rodriguez Carrasco. Shindálé Luis Rodriguez Tamez. Shi Goschish (Hada'didla') Ndé, Shi Kónits'l.'Iií Ndé, Shi Nkaíyé Ndé, Shi Tlaxcalteca Ndé, Shi Nahua Ndé, Shi Cúelcahén Ndé, Shi Zuazua Ndé.

English Translation: 1 am Margo García Carrasco Tamez. My mother is Eloisa Esparza Cavazos García. My father (deceased) was Luis Carrasco Rodriguez Tamez. My maternal grandmother was Lydia Montalvo Villarreal Esparza. My maternal grandfather was José Emilio Cavazos Peña García. My paternal grandmother was Flavia de la Fuente Rodriguez Carrasco. My paternal grandfather was Luis Rodriguez Tamez. 1 am born of and for the Lightning Clan, the Big Water Clan, the Mexican Clan, the Tlaxcalteca Clan, the Nahua Clan, the Tall Grass People Clan, and the Lava Bed Rock Clan. 1 am an enrolled member ofthe Lipan Apache Band ofTexas. 1 am a citizen ofthe Ndé Nation ofKónits'l.'l.íí Gokíyaa.

Our Ndé Traditional Territory is known in the mother tongue as Kónits'l.'l.íí Gokíyaa, or Big Water Peoples' Home Lands. The Spanish Crown adopted the Ndé name ofthe Kónits'l.'l.íí ('Big Water') directly from Ndé language, as a frrm recoguition ofNdé sovereignty and title to 'La Gran Apachería, which completely inc1uded the Rio Grande and much ofnorth-eastern Mexico. The border wall, situated along the last 70 miles of the Lower Rio Grande River region, is located on lands to which the Ndé never ceded the Indigenous proprietary rights. Ndé land-based, extended clan kinship is still a primary social and economic organization and governance within the unceded Traditional Territory. Our governance is weakened greatly by the border wall and the inter-re1ated relationships between Indigenous decolonization, militarization and the 'war' on terror, drugs, cartels, immigrants.

There has never been evidence produced through or by the doctrinal systems of Spain, Mexico, Texas, nor has the United States, or for that matter, any Native American, Federally Recognized, or other Indigenous sovereign ofthe hemisphere ofTurtle Island everextinguished the Ndé Aboriginal Title. Obviously, the Ndé were never eradicated or 'conquered'-violently colonized, assimilated, indoctrinated, and abused-yes, but not enough to extinguish the primary form of organization and governance-the maternal clan structure.

Ndé never willingIy surrendered claims and rights to our customary lands and territory known to N dé since time immemorial. The border wall is located in a contested Indigenous jurisdiction. The U.S.federal court system is an inappropriate venue over Ndé human rights claims

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relative to the border wall because, as demonstrated in the brief, the U.S. has proven to be incapable of providing objective, unbiased and non-discriminatory observance of internationallaw respective to the rights ofNative Americans, Indian Tribes, and Ndé as a Southern Athabascan people with Aboriginal Title in Texas and on the Texas-Mexico border.

Our traditional governance and law systems are enacted and organized through decision­making at the leve! of the gOW1t gokal, ('ranchería'), or ('households linked through female and male kinship structures and reciprocity). In Ndé organization, women traditionally have had strong involvement in participating in the shared decision-making and leadership capacity-building on all matters related to the spiritual, physical, mental, educational, social, economic, and political well­being of the family, clan, and extended kinship community.

I have experienced most ofmy life, since childhood, being educated by and alongside my parents, grandparents, and Indigenous Knowledge Experts within our traditional organization and governance systems. Today, I work to bridge Indigenous epistemologies and ontologies to the academy, and to link these to wider Ndé community concerns and aspirations. I am an Assistant Professor in the Faculty ofIndigenous Studies, in the Department of Community, Culture and Global Studies at the University ofBritish Columbia Okanagan, Canada. My life-Iong learning in Indigenous traditional and contemporary knowledge systems includes the following: Ndé Epistemological and Ontological Structures and Systems; Community History Recovery; Oral History; Ways ofKnowing; Memory; Cosmology; Language; Inter-Generational Experience; Genealogy; Women's Spiritual and Ceremonial Practices; Elder women's knowledge; Medicinal and First Food Systems; Midwifery Practices; Indigenous Law & Governance Systems; and the revitalization ofIndigenous Justice Systems. My current research program is grounded in Ndé de­colonial studies, community-based practice, archival research, and human rights. My teaching focuses on decolonization, recovery, revitalization and indigeneity. My current praxis intersects Ndé History in Kónits1t1tÍÍ Gokíyaa, 1375-2011; Indigenous women and Indigenous gender analysis (Texas-Mexico-U.S.border region); militarization; colonialism; genocide; human rights; and Indigenous rights.

There are several urgent issues confronting Ndé peoples who have suffered, and who continue to experience harms as a dire consequence ofthe U.S. border wall in our lands. As you are well aware, I have analyzed that the border wall is the state's ideologically-driven architecture, largely built by and benefitting transnational corporations and their stock investors, and it was legislated and manifested into a reality by a (dominantIy) White, male, Christian, high1yeducated, majority of the U .S. Congress. I have previously provided an intersectional ethnography of the political and human, social mapping ofthe U.S. Congressional vote for the border wall. I feel that discrimination should be viewed in multiple directions.

In normative analysis of discrimination, the reader is only instructed to see the perpetrated; however, in a more nuanced and rigorous anlaysis ofpower, we are given the capacity to understand and know that power must be also _understood from the view of the perpetrated. In that lens, we are directed to witness, learn, experience, and to act on the salient reality ofhow discrimination builds momentum against the perpetrated. Through a prism ofrace-gender-class­education analysis, identity of the perpetrators coalesces by knowing how the exercise of authority and discipline upon the perpetrated was enacted by powerful interest groups. In the case of the Texas-Mexico border wall, one example of a significant interest group, can be understood by examining the social identity of a 'bloc' of power: White male Christian majority Congressional legislators, whose organizations and institutions represent powerful business interest groups. The view ofthe perpetrated, through the lenses ofIndigenous peoples ofTexas-Mexico border, and

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Mexico, reveals an important 'profile' whereby the reader is then provided more nuanced tools for untangling the underlying ideological issues which 'built' the waIl.

In a nutsheIl, my analysis demonstrated that a 'bloc' ofWhite, male, Christian, highIy educated, economicaIly privileged, and conservative legislature, whose members (dominantIy) live far away from the Texas-Mexico region, exercised their votes in 2006,2007, and 2008 to approve funding for the waIl's construction, to authorize the waiver of thirty-six federal laws, to cIear the constitutional path to effectively void civil and constitutional procedure, and who authorized the use ofU.S. armed forces and increased militarization ofthe U.S. Customs Border Patrol, which enabled the increased scale of technological military systems which were used to dispossess Indigenous peoples along the Texas-Mexico border.

The accumulative effect ofthe dismantIing ofU.S. law systems, the militarization ofplaces, the restrictive cIimate coIlapsing in on Ndé who were working hard to attempt to receive consultation and culturalIy sensitive and relevant compensation, aIl led to the urgent crisis we are experiencing today in the Texas-Mexico region. My concIusion on the issue ofracial discrimination, in a nut sheIl, is that race, gender, cIass, education, geography, and political power are key categories to articulate and to comprehend the perpetrators.

CurrentIy, my analysis applies a multi-directional approach rigorously; to my knowledge, there has been no prior report in the literature which analysed the U.S., Texas, (as weIl as other Native American nations, ('FederaIly Recognized Tribes'), who may have had involvement in border security contracts relative to the carceral systems deployed against the Lower Rio Grande on the Texas-Mexico border. It is my belief that a much more thorough investigation needs attention regarding the Congressional, as weIl as Tribal actors, elected officials, acting as individual and as coIlective actors and agents under formal relationships with the U.S. Department of Homeland Security, in the systematic abuse of their coIlective social identity in differentiation to the social identity of perpetrated Ndé. To my knowledge, there is much repression ofthis, as weIl as much repression relative to the formal agreements made between the U.S. DHS and U.S. Tribal govemments which directIy or indirectIy impacted the Ndé situation. Given the fact that the U.S. DHS aIlowed outside Tribal govemments the 'rights' to make cIaims to the cultural resources ofthe Ndé, but frrrnIy excIuded the Ndé from these decisions, has raised serious questions ofhuman rights violations which are aimed at the nation-state, as weIl as the nation within the nation-state. The Ndé have established-in numerous peer-reviewed papers, peer-reviewed book chapters, thesis, dissertations, and U.N. Permanent Forum on Indigenous Issues intervention statements­that there were pre-border waIl contestations and conflicts related to land cIaims and contested cultural resources between Ndé and FederaIly Recognized Tribes. It is my contention that the U.S. DHS used the 'divide and conquer' tactic to further marginalize Ndé from decision-making and Free Prior and Informed Consent, and gave capacity to other Indigenous nations without regard, respect, or responsibility to the Ndé Elders, children, mothers, families, and workers to whom these resources belong, name1y, Indigenous proprietary titIe to lands, territories, biodiversity, and the cultural-natural resources on both sides ofthe U.S.-Mexico border, and the border waIl.

Decolonization, higher education, and digitalization ofmy people's knowledge systems since 1990 has led to crucial dissemination of ancestral knowledge, memory, and history between Elders ofEI Calaboz Ranchería and the broader Ndé nation. As a result, we have come into dialogue about the Ndé Proprietary TitIe ('Aboriginal TitIe'), pre-dating European colonization, Papal BuIls, and the destructive concept of terra nullius/terrenos baldios. We are studying the colonial charters and constitutions ofMexico, Texas, and the U.S., and the fictitious cIaims to sovereignty and lands oftwo nation-states and Texas in Ndé unceded lands.

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Due to the severe restrictions imposed by the U.S. Federal Court, 5th District, seated in Brownsville, Texas, U.S.A., the Ndé counter-narrative to the state's discourses of 'private property' has been thoroughly quashed, and thereby made ineffective for legal purposes in U.S. courts. Ndé, still hold that the U.S. government forcibly "condemned" the lands ofEloisa García Tamez and her relations in El Calaboz, and essentialIy stole these lands in 2009. In protest (letters, denouncements, marches, organizational action), without the benefit of consultation, or Free Prior and Informed Consent, and without financial resources to hire Indigenous law experts, N dé were constrained from articulating the Indigenous legal principIes and perspectives of inherent N dé titIe.

For example, currently in Texas, and in north-east Mexico, Ndé live in the shadows ofthe state's discriminatory laws which marginalize Ndé as unrecognized 'tribes'. Restrained to fulIy exercise se1f-determination under Indigenous Proprietary Title, with unceded ownership of traditional territories, lands and resources, the U.S. and Texas discriminate against Ndé to live with and in as the decision-makers, managers, and owners over our respective cultural resources and IntelIectual Property within our traditional and customary territory. (Mexico has also negated this salient reality acrossjurisdictional borders ofTexas, Mexico, and the U.S.) The U.S. and Texas share in a unilateral authority against Ndé aspirations and interests. Effectively authoritarian in its scope and depth, this exc1usion and marginality works to fractionate, dismember, disband, and threaten our culture. Indigenous peoples must have the social and economic means to resist assimilation and incorporation, and ifwe choose to resist destruction by way ofbeing made malIeable into Texas 'Hispanic' populations.

The border walI is a violent reminder, and a catalyst, to remind the Ndé ofthe right to se1f­determination over our lands, territory, sacred sites, cultural sites, biodiversity and subsurface elements in the Texas-U.S. Amistad 'National Parks' and other relevant areas in the interior ofthe border. The Ndé activists who fought against the border walI also raised awareness to a broader national and international community that Ndé are not peons nor the 'poor cousins' ofFederalIy Recognized Tribes. We are a Nation whose specific histOlY with Mexico and the U.S. deserves more extensive investigation. For me, this would entail serious, protected, safe face to face dialognes with the support ofthe internationallegal community. In the law books, 'Lipan Apaches' were, and continue to be still considered to be official 'war enemies' ofMexico, Texas and the U.S. Therefore, to disrupt ongoing crisis along the walI, would mean that Mexico, the U.S., and Texas must be calIed upon by the internationallegal community to fully and respectfulIy recognize the Ndé as dynamic, resilient, productive, and significant Indigenous Nation. The recognition ofthe rights ofNdé to be afforded the rights articulated in the UN DRIP, would entail rigorous application of restitution, redress, and revenue sharing.

RecentIy, there has been much controversy, shock, and crisis over the issue ofmy discovery, in June 2011, ofsignificant and irreparable damage to cultural, biodiversity, alld burial sites ofthe Ndé in El Calaboz Ranchería. I fulIy documented, with still photography and fIlm, the damage caused to our Elders, women, families, community and Nation by the U.S. Department of Homeland Security (Secretaries Michael Chertoff and J anet Napolitano), the U.S. Army Corps of Engineers, the U.S. Customs Border Patrol, and numerous private contractors which the U.S. DHS funded to enact the decision-makirIg of Congressional e1ected officials (a majority White, male, Christian, highIy educated, non-Indigenous (non-local), and economicalIy privileged group).

1 am in fear that the U.S. government may forcibly remove the remains and damaged earth, cultural remains, and, potentialIy-the human remains-which were left behind in earth heaps throughout the community ofEI Calaboz Ranchería. While I was documenting the evidence, I recognized, literally, my ancestors, for many generations, and the past-were exposed and this

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frightful reality was in the fragments 1 scooped up into my hand, and glaring at me. These earth heaps are a crucial piece ofmy current research investigation. 1 immediately informed the Elders, the hereditary Chiefs, an archaeologist working with our community members, and spiritual advisors.

Realizing great urgency to quick1y gather together a decision-making group about the startling discovery, 1 also have endured many sleepless nights, trauma, PTSD, nightmares, and increasing levels of stressors 1 carry as a researcher, a community member, a traditionalleader and a human rights defender. As an Indigenous woman actively engaged in challenging the colonization ofmy people, 1 recognize each day the wall is standing and the Ndé are not protected by international human rights systems, and each day the Ndé endure feudalistic systems which belittle and demean our values and traditions, that our Elders and activists fighting this injustice along the wall are endangered. In the recognition of the immense responsibility we have to raise crucial evidence ofinter-connectedrights violations in the shadow ofthe Texas-Mexico border wall crisis, 1 wish to state that 1 am willing to come forward to give testimony about my documentation efforts related to the cultural remains in the earth heaps. 1 urgently call upon the U.N. CERD committee to offer my mother, my community, and myselfprotection as human rights defenders bringing forth evidence which demonstrates that the U.S. government, groups, organizations, corporations, and individuals enacted genocidal acts which are putting my people in increasing danger of eradication.

The collision of militarism, militarization, mining, extraction, and water deprivation in the Ndé traditionallands on the U.S. side ofthe border is telling. 1 have documented the coordinated plans, sponsored by the Texas Department of Agriculture and the State ofTexas to wage a military war, along the Texas border against 'carte1s' and 'drug lords'. 1 have documented the deve10pment by U.S. corporations, such as Goldman Sachs, to develop oil in the lands, in South Texas, currently bifurcated by the Texas-Mexico border wall. 1 have documented the U.S. Nuclear RegulatOlY Agency's plans to permit uranium 'yellow-cake' mining'in said lands. While documenting the construction of the currentIy unfolding rail freight train bridge, which is constructed above the 18 foot wall near El Calaboz Ranchería, my mother experienced increased government surveillance by armed personnel. On numerous documented occasions, she disrupted government personne1 enacting surveillance on her during early morning hours within feet and inches ofher home windows and deeply in her personal space. The confrontations between government armed personnel and the Indigenous woman human rights defender is a cause for extreme and urgent attention.

It should be documented that since 2010, 1 raised all the aboye issues, in detail, in three letters to James Anaya, Special Rapporteur on the Rights ofIndigenous Peoples. 1 spoke with the SR Anaya and his staffmembers about said concerns at his New York office in May 2011. To date, 1 have not received a formal reply addressing our concerns from the SR Anaya.

1 firm1y believe that the aboye issues, in addition to the information provided in this brief, have deepened my comprehension of the historical, intergenerational, and ongoing project of a military and ideological destruction against Indigenous peoples in our traditionallands, waged by powerful interest groups ofthe U.S. and Texas. This affects similar1y marginalized, oppressed, and vulnerable Indigenous peoples in this region.

The ripples of state and organized corporate violence are complex, and Indigenous communities are rarely, if ever 'closed' communities, which makes the need for an international legal community to act in coordination and in principal on this issues of spatialized and intersectional racial, gendered, c1ass, linguistic, religious, ethnic, and age discrimination.

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Discriminatory policies along the Texas-Mexico border has deeply penetrated a much larger community ofvulnerable Indigenous peoples ofmulti-origins who live, work, pray, and survive in the Lower Rio Grande Valley region beyond the conservative identifiers of 'Mexican-American', 'Hispanic', 'Chicano', and 'Latino'. The violence is not contained to the Texas side of the border. , The border wall negative1y affects severely marginalized peoples in the region, who may or may not outwardly c1aim Indigenous identity, though who are targeted through racial profiling and phenotype in many similar ways that Indigenous peoples are targeted by the Secure Fence Act of 2006. The Indigenous peoples' social movements in Mexico and Texas, is often cánflated with 'terror', 'drugs', 'human traffic', and the c1imate of disciplining and punishing Indigenous peoples with the wall is connected, in my mind to the broader domestic policies of the criminalization of Native peoples ftom the region and Mexico along U.S. borders.

The Texas-Mexico border is a dynamic place where bonds are shared among many peoples regardless ofhow states' impose false racial categories and c1assifications upon uso We have and continue to share common places, experiences, and aspirations, though the border is a severe1y damaging architecture which, on the one hand says to us "you are unwanted" and "here is a prison for your body and mind", and psychologically tends to spatialize fear of the so-called Indian, Migrant, Illegal Other.

The wall, in my experience, has also brought Indigenous peoples into dialogues, serious debates, and equally serious alliances for socialjustice and human rights. Though, mostIy, sadly, the wall raises aclimate of fear of association with affected Indigenous peoples, who are being, in my mind, 'ji'amed' as deviants, abnormal, and 'bad'. In a region with a large Catholic mentality, being 'bad' is like being banned and shunned. Speaking out against human rights violations has its negative impacts at the most micro-leve!. Not everyone can take risks that Eloisa García Tamez has taken, for she is a prominent, well educated, high ranking community member from very old families and c1ans.

At the same time, 1 have done sorne research about how the wall has pitted certain Federally Recognized Tribes against Indigenous peoples who were their historical rivals for resources after 1848. 1 have also documented how certain Federally Recoguized Tribes stood to benefit socially, economically and politically from supporting the U.S. government's policies and logics for bifurcating the Ndé territory further.

The ideology ofthe wall has caused extensive damage, and further contained and truncated Native American peoples' (in the interior) conceptions ofwho is a 'Native' 'Indian' (which is a backIash, 1 fee1, from anti-Mexican fervor, which affects in sorne way just about anyone who consumes mainstream radio, te1evision, and culture). Native American tribal peoples, in general, cannot escape being deeply affected and influenced by the extensively negative climate of fear mongering and xenophobia shaping an anti- 'Mexican' view in U.S. cultures. In my interactions with Native Americans at internationallegal arenas (UNPFII, Native American Indigenous Peoples' Caucus) 1 have noted how this fervor influences the factionalism and deeper divides between Ndé and those with established 'credentials' with the U.S. recognition system. The border wall issues that Ndé seek advocacy for in national arenas (National Congress of American Indians, Apache Women's Conference) are severe1y marginalized. There seems to be great discomfort among Federally Recognized tribal nations Ndé advocacies for recognition, acknowledgement, redress and restitution. A few colleagues, speaking with me private1y, allude that Federally Recognized Tribes are uncomfortable with Treaty-based Lipan Apaches from Texas who they . perceive may be successful in our land claims and who may shift the economic power structure of lands and resources.

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Despite the fact that Ndé are Treaty signers (numerous Treaties!), and carriers of extensive genealogies demonstrating in-depth care and attention to Hereditary Chiefly families. The border wal1 raises newexcuses and rationales for exc1uding Ndé from our heritage, practices, governance and resources. Indigenous children, Elders, women, men, workers, families, and individuals' minds, mental wel1-being, mental health, and social health are impaired by the xenophobic, economic, ethnic, political excuses for why the wal1 needed to barricade Ndé from exercising our rights to ful1 acknowledgement by the U.S. government, U.S. society, and U.S. Federally Recognized Tribes.

The wall seems to re-script and re-cast the colonial consciousnes of 'the sovereign' and 'the subjugated'-a recolonization ofthe Indigenous mind. Sadly, the recession, hate-mongering, and paranoia about 'terrorism' also fed the insecurities ofweakened and vulnerable Native American tribal entities and actors, who, wittingly 01' unwittingly, took part in, and benefited fi'om, the racial, ethnic, cultural, economic, gendered, age, and national discrimination against Hereditary Ndé Chiefly peoples in our own territory. The border wall analysis ofU.S. DHS contracts between the federal government and Tribes is a project 1 am presently documenting. At the present, it is telling how in 2008,2009, and 2010 that Native American Tribes did participate in the increasing militarization ofthe U.S.-Mexico border after the Secure Fence Act, and that Native American peoples, especially in conservative 'heartland' sta tes in the interior, did lend support to the fervor for building the border wall-even after it was made a national issue that the wall would be constructed in Ndé lands. Discrimination was not something which occurred in a binary way-it was inter-ethnic as well; other Indigenous peoples felt that they had something to gain by encouraging, supporting, 01' otherwise demanding that other Native American peoples' constitutional, civil and human rights be terminated. Economic incentives seemed to 'seal the deal' for Tribal nations who signed on, and the discourses, 01' reasons given, for this behaviour are often tied to the national discourse of 'terrorism' and 'economic stability.'

In my view, it would be equally important, in a human rights analysis, to examine the contracts, 01' other legal1y binding agreements, entered into by the Secretary Michae1 Chertoff, US DHS, and Tribal officials relative to 'infi'astlUcture' 01' other improvements manifested for fusing and unifYing Tribal and federal policing of 'dlUg cartels', 'illegals', and 'traffic' on the Texas­Mexico border. 1 have argued e1sewhere that an oligarchic structure should be engaged and rigorously examined in order to fully unveil the range of actors participating in the discriminatory impacts ofthe Texas-Mexico border wall. We should not turn away from engaging the more difficult issues, the hard choices, the effects of coercion and influence, and the difficult questions that arise by taking a more vigorous approach to e1iminating racial discrimination against Ndé. How did the state incorporate and fund numerous state agencies, federal agencies and functionaries, as well as Federally Recognized Tribes (comprised ofindividuals, with local and micro interests within a hierarchy of colonialism) to cooperate and even to benefit (socially, fmancially, and politically) fi'om the dispossession ofNdé peoples, women, families, children, workers, and the larger Ndé Nation. When 1 hold the cultural remains ofmy ancestors in my hands, 1 have to ask these kinds of questions. It is my job mandated to me by my Elders, Hereditary Chiefs, Council, and for our children.

There is not doubt in my mind that the border wall causes people to question and to judge our community members' citizenship, our way oflife, our culture, and our intrinsic value system inherently connected to the land and land-based resources. The wall sends a blanket, criminalized message to outsiders, tourists, and, 1 be1ieve, fumIy fuels white supremacists' and xenophobes' arguments that our lands and our peoples should get another layer of a gulag wall built next to the

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current one. This rhetoric and dangerous discourse was spreading during the current elections in the U.S. This is evil and deeply violent. The thought of even considering further carceral architecture in our homelands-or anywhere along the U.S.-Mexico border- is psychopathic and a serious reason for urgent action on our community's behalf.

I am deeply penetrated and impacted, on an individuallevel, psychologically and spiritually, and yes, cognitively, as a result ofthe indignation, shame, belittlement, and outright violence that our Elders, children, families, workers, and community endure everyday along the wall of death, as they sayo I have received hate mail, and even e-mail threatening my persono I have had to read, for several years now, all the racially abusive and violent 'readers comments' at the end of every artic1e published about the N dé fight against the wall. I have had to read comments by xenophobes and misogynists who called for my mother to be "lynched with barbwire", "strung up", bumed, mutilated, and far too many other things that I have not even shared with her for fear of the damage it could cause her spirit. Though, she is so intrepid that I'm sure she has read far more threatening messages than I ever could.

The wall sends a c1ear message, everday, to everyone driving through our community on their way to work, to the city, to the shopping centers, to the golf courses, to their churches ... that somehow, our community along the last 70 miles ofthe Texas-Mexico border did soinething terrible 'wrong' (according fo their lenses) to 'deserve' being incarcerated in an open-air prison structure.

This message is saturating and marinating within our peoples' bodies, minds, spirits, and causes our people to repress their culture, and forces them to assimilate at faster rates, to deny their heritage, to lose their language, to reject their ancestral ways ofknowing, to see their lands and peoples as inferior, and ultimately to participate in the destruction of our very own culture. I see this occurring in my observances at community meetings.

In the sacred lands, in our mother Earth, I also witness the visual ideological messages perpetrated by the wall against her. The criminalization ofthe Ndé Territory and Traditions along the wall is spatialized. It is directed to our farms, pastures, gardens, sacred sites, and burial grounds, community gathering places, to our biodiversity, community centers, and our home sites. This reality has a profound effect on the local politics and local authorities, undoubtedly, which use social Darwinism, cultural re1ativism, and biological determinism, in neoliberal fashion, to reconstruct and to restock the myth ofthe 'Savage Indians', 'Savage primitives', and 'bad Mexicans'. I have noted that many long-time settlers, as well as newcomer outsiders use these tropes to this day in their ignorance of the Indigenous landlords in their midst. This is one of the most frustrating parts of my daily work alongside my Elders and my people.

I have written several Op-Eds in protest ofthe retum ofsettler colonial 'histories' and 'memorials' which have surged during this crisis among our people. I am extremely affected by the pemicious ways the neo-settler society method builds upon colonial tropes ofthe 'Savage' 'Apache' and 'Mexican'. I see this as a recolonization of place, space, and knowledge. The media used by the neo-settler mindset in South Texas is an important site for further interrogation. Much more work should be done to investigate the level of complicity that the media played in building and maintaining a gulag wall in Ndé Territory.

All ofthis, undoubtedly, is severe punishment for Ndé and all our relatives along the walls hurtful path. I think Ndé still feel a great duty towards the many marginalized peoples who live in our territories, like our ancestors did. It was Ndé who absorbed many hundreds ofTlaxcalteca and Nahua peoples during the 18th_19th century Spanish extermination wars; and it was Ndé who absorbed many Mexican Indigena during the late 19th _20th century along the Rio Grande. We are

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one ofthe few peoples who enacted legal mechanisms with Spain, Mexico, Texas, and the U.S., to protect peoples and our lands.

Ndé have been one ofthe few Indigenous Nations ofNorth America, with archeologically and anthropologically documented records of our inherent role in the governance ofTurtle Island along with thousands of other Indigenous Peoples, who were recognized by the U.S. Indian Claims Commission as an unquestioned case of Aboriginal Title in the U .S. I fmnIy believe that Texas and the U.S. must be confronted on the lingering question of settlér colonialism and genoddal polides of erasure against N dé. The border wall is an excellent site to engage this lingering question and to move firrnIy toward a peaceful and respectful resolution. This is owed to our Elders and Hereditary Chiefs.

RecentIy, I have had the opportunity to remember the many joys that my community members bless me with on a daily basis. Through all this misery and suffering experienced on micro, intima te, and familiallevels, I have also learned more about the resilience of my people. This knowledge is what nourishes me, strengthens me, and gives me hope that a better future is still possible with the support and assistance of the internationallegal community.

We are currentIy involved in ceremonies for my daughter, who is one of many N dé girls and their families, who have taken leadership in revitalizing one of the most andent coming of age ceremonies in the Americas-the Naííees Isdánalesh-White Painted Woman ritual. My daughter and I, along with my family, are preparing for the year-long preparations for her ceremony. We are working to strengthen our culture, revitalize our mother tongue, to educate our people about the beauty and endurance of our culture and peoplehood. We are working to protect our sacred lands and our water-the source of alllife. Without the strength to overcome fear and internalized oppression imposed upon our spirits, minds, and bodies, we have difficulty maintaining all the traditions, language, stories, and beliefs that are core to our culture. However, with architecture of hate constraining us, and economic and social polices which ensure we will be destroyed as a culture and Indigenous peoples, we cannot fully enjoy the knowledge that uniquely belongs to us, the Ndé, especially when we are confronted with how even sorne of our Elders who have knowledge are caught in the snares of psychological warfare. If our Elders continue to shut down and drive underground our knowledge systems, unbelieving themselves that their own experiences and knowledge is spedal and unique, if they continue to receive messages of doubt that their knowing is not as 'expert' or 'real' as a PhDs, or that their knowing is 'irrelevant' because it doesn't have bureaucratic, or anthropological stamps of approval on it, then the wall will achieve the objective offully assimilating the Ndé along the border. The wall is a force that causes shame of the 'Indian' within; 'Hispanic' to south Texas Indigenas means 'dtizen', not 'suspect.'

RecentIy, in my research alongside Elders, I learned that the Ndé water rights are in the land in El Calaboz Ranchería, as a result of the teachings given to me by my mother in one of our many walks on the land. She reminded me ofthe well that my grandfather José Emilio García and his father and grandmother before him, secured in the land. This well and inherent water rights were recognized by Spain, Mexico, and the early constitution ofTexas, when those states first had contact with our ancestors in the colonial and late colonial periods.

My mother instructed me that her mother, and the ancestors before her grandmother, were undergoing severe repression ofIndigenous ways and culture during their time. My mother instructed me that in those times of great violence, the women sometimes threw their traditional c1othing, grinding stones, and sewing tools into the earth. My mother told me that my grandmother did so, and she put her Indigenous and traditional things into the well.

12

At the time I received these stories, I was investigating the riparian water right laws of Texas, and I realized that the U.S. DHS' pressures upon my mother, and other Elders to force the purchase 01' extinguishment of their mineral, water and subsurface rights through their recent 'offers' to take them for $100.00, was an element of genocidal wars against us ongoing.

I informed my mother that the weli, and its archaeology of Aboriginal water rights, and its genealogies of Aboriginal tide pre-dating European colonization, is a crucial site for human rights and discrimination analysis. I informed my mother that I would continue to carry forward her wise teachings, and that I would continue to work for justice. I told her that we must keep our focus on protecting the sites of evidence.

As I stated earlier, I have been very concerned with the safety ofIndigenous women human rights defenders along the Texas-Mexico border wall. Because I have been deeply involved in every aspect ofmy mother's and community's litigations challenging the border wali and dispossession, and I have been sought after to participate in several working groups to inform the legal sectors about the effects on the community, I rare1y discuss the wali's impact on me direcdy. I guess my culture teaches me to put my own troubles to the side so that lean focus on being of service for the community. 01', my culture teaches me that my voice can be a tool for the many. Either way, Ijust don't talk about the scars, damage, and pain I experience due to the wall and what I witness in its shadow.

I have also had several encounters with heavi1y armed U.S. personnel, on our lands in El Calaboz and in the lands of our re1ations, the Jumano Apaches, in Redford Texas and Ojinaga, Chihuahua Mexico at the border crossings, and on the levee. Several times the U.S. CBP agents he1d me and my companions-other Apaches-for long and disturbing questioning. On one occasion, there were seven or eight heavi1y armed soldiers ofthe U.S. CPB, who held us, late at night, at the Ojinaga-Presidio checkpoint, and they stripped down my entire car-inside and outside, and undemeath the cal' based on whatever information they have on my record. At that time, and on a separate occasion, also at Presidio-Ojinaga checkpoint, my Apache companion, Michae1 Paul Hill, was strip searched, and his Eagle Feathers, Hadntn (polien), turquoise stones (used for Apache healing ceremonies), were all taken by force (Michael challenged the officers and refused to allow them to touch the sacred objects), and then thrown down forcefully, which broke an Eagle Feather. We educated and informed the armed soldiers of our rights to practice our Native American religion there and in our traditional territory beyond borders. The officers informed us: "Y ou do not have those rights here, where we are standing."

Furthermore, on another occasion at the same checkpoint, I f:t1med an officer interrogating Michae1 again, (second time) during the day-time. They argued for a lengthy amount oftime. I feared that the armed officers were going to harm and arrest Michael, however, Made1ine Rios, who speaks fluent Spanish, and who accompanied us on this particular trip to our traditionallands in Chihuahua, he1ped to negotiate with the soldiers to let us go.

I have experienced increased amount of surveillance on me, since the border wall, especially in my air trave1 between Canada, the U.S., and Mexico. I used to save all the cards inserted into my suitcases, placed there by NSA, but they were stolen. In 2007, when I began to do extensive interviews of those impacted by the wall, and was traveling through Arizona on my way to Washington state, I did experience asevere leve1 of surveillance. At a water-park recreation spot in north Tucson, my laptop, cell phone, camera, passports, and driver's license were taken from my vehic1e, which was locked. However, many other valuable items ofmy traveling companions were not touched. When I reported the crime to the Tucson police, the officer involved mentioned to me, and I quote: "whoever did this was professional; they knew what they were looking for and

13

were fast and neat." I lost my dissertation in progress, field notes, and of course, all my legal identification. 1 resumed my work, nonetheless, and began my dissertation anew, from scratch. On several trips to the U.S., since the installation ofthe wall, 1 have experienced my luggage and belongings severely damaged. On one trip to El Calaboz, when I retumed my suitcase was bumed and interior belongings-especially a traditional clothing-was bumed. The airline could not explain why no other suitcases also experienced a flfe and did not replace the items, they only gave me a very cheap suitcase in replacement. After that, the following trip to San Antonio, for a conference, I retumed to discover that once again, I had aNSA card in my suitcase informing me that once again I qualified for a full search of my belongings, and that several traditional objects gifted to me by DI. Cynthia Bejarano were destroyed, sadly. As I said, this occurs so frequently, that I had ceased to count or give it any further attention. 1 just took this as part of the terrain of the legal advocacy and human rights defense work that I do and will continue to do.

As a traditional person, and a leader, the collection ofmedicinal remedies, pastoral and agricultural ways oflife, walking, running, recreation in our lands, a calmer way oflife, community feasts, community decision-making gatherings, ceremonies, and fami1y reunions, as wel! as hunting, fishing, and other First Food gathering activities, are al! reduced to near standstill directly related to the hyper militarization of our lands today.

In our lands, I have witnessed, seen, observed, and documented the construction, not only of the wal!, as well as the many co-related architectures of enclosure and surveillance: Light towers, watch towers, armed drones, surveillance aircraft (helicopters, low-flying airplanes); major increase in U.S. CBP heavily armed in our community; heavy vehicular traffic ofU.S. CBP and contractors ofU.S. Army; increased patrolling and heavier presence ofTexas Department ofPublic Safety. However, when our community members are victimized by the aboye, the local authorities claim that in our lands, along the wall, none ofthe police or sheriffhas any authority to do anything useful, nor to even take the phone callo For the most part, I think most of our community members would agree, and have stated in varying ways, that we are in a war zone.

Recently, since our last community gathering in June 2011, a serious concern 1 have about the wall, is how it works to further fractionate, contain, constrain, restrict and weaken the Ndé, a people who refuse to be conquered or surrender to U.S. and Texas violence against our very existence. We are a proud and vocal people. Our hereditary Chief, our Elders, and my mother, are descendents of Chiefly peoples with a long record ofbeing peaceful, though also defenders of our lands and our rights. We have a long history oflitigation in Spain, Mexico, Texas and recently, the U.S. When will the world hear our pleas and cries for justice? We are not going to go away, if anything, our population is on the rise. Native American Ndé and Indígena Ndé (close to Mexico) have a young population in a growth surge. Half of our people are under the age of 17! Ndé raise the concems ofhuman rights, economic, and social development with our culture, lands and territories beca use, as stated, we are the Aboriginalland owners, and we-without the help, assistance, or regard ofTexas or the U.S. governments-are taking leadership to take care ofour people's well being and futures.

While the state and powerful interest groups have reduced and further reduced the most fundamental forms of protection and govemance (civil rights, constitutional rights, local govemance) for the respectful regard ofNdé peoples, lands and resources, Ndé hereditary Chiefs and Councils have, in response, increased and sought grants and support to improve and strengthen our social organization broadly across the Ndé Nation-as a direct consequence ofthe border wall crisis. Due to the fact ofhistorical marginalization ofNdé by the Texas Anglo settler pioneer society; traumatic the effects of the U .S. Indian Boarding School policies against N dé; the

14

intergenerational violence ofthe Catholic mission assimilation on Ndé; and the effect ofthe U.S. militarization oftraditional Ndé space (Texas has largest square footage ofU.S. bases in continental U.S., especially along Texas-Mexico border counties), Ndé exist at the margins ofU.S. economic assistance to Indigenous Nations. It is known well that all Texas border counties rank as the most economically marginalized in Texas and in the U.S.

Today, Ndé are working vehemently to sustain our traditional governance structures-over a vast geographic area which is similar to the struggles experienced in the Arctic-and far fewer resources as un 'unrecognized' and 'unacknowledged' Treaty based people. We are working hard with our Elders and hereditary Chiefs to sustain traditional decision-making structures, and writing grants and working in collaboration with the University ofTexas Human Rights Clinic, to address the crisis we are facing. The grim reality is that poverty and violence enable the powerful state to undermine many of our efforts.

Today's ongoing laissez faire policy of encroachment,dispossession, militarization, surveillance, and assaults on our culture are viewed by me to be severe threats against Ndé land­based social, spiritual, economic, and self-determined objectives which Ndé peoples seek to adopt a balanced approach to peaceable governance of our Traditional Territory, customary lands, and resources beyond borders. Some of our people express anger and hostility towards human rights defenders, even though our work benefits them on many important levels and brings our common concerns into visibility by a global legal community. I understand their frustration and rage; Jobs are scarce, education for our people is substandard, and economic issues offood, housing, and income prevail. When our people perceive that our work may cause the local government and the federal government to deny us federal acknowledgement, or to criminalize our communities more harshIy than ever before, I do indeed understand when and how individuals may be forced at times to repress their Indigenous identity, to hide their ancestry, and to deny their own family members.

Sadly, 1 myselfhave experienced this form of attempted silencing and repression at a micro leve1. It has been something I have not discussed publically, nor even with my family members, with exception ofmy husband and my Hereditary Chief. At one stage ofmy legal advocacy, during and after the period of my testimony at the Inter-American Commission with the University ofTexas Working Group on the Texas-Mexico Border Wall (Denise Gilman, et a1.), I experienced severe shunning, and outright harassment-by a very close male relative. At one point, 1 felt so threatened and fearful for my and my children's well-being, that 1 called off all my work with the advocacy work, until my community Elders and leaders helped me to address the violent force and threats 1 felt toward me related to my public voicing and critique of the administration. Because this powerful, and more wealthy community member felt that the national media stories portrayed our family prominentIy, and caused his clients to question him on his loyalty to conservative political platforms, and because as he stated to me, Indigenous women's human rights defense was "bad for his business" and that "if anything bad happens" that 1 would have to "deal with him" I realized that the work I did on the legal cases-the federal and the international also influenced the potential risk and threat ofincreased internal violence between Indigenous peoples, classes, and genders. 1 wish it to be known that our Elders and Hereditary Chief came forward to stamp out this form ofinternalized violence in our community. My Chief'outed' this issue-ofinter-familial misogyny and violence- in a traditional manner, and disrupted this level ofpersonalized violence and threat against me by a powerful male positioned to do destructive work against me. He conducted ceremony for my protection.

Finally, on this issue, 1 wish to say also that a strong circle of spiritual support and ceremonialleadership helped me to recuperate my se1f during this crisis. And, on a very intimate

15

level, 1 would not be here today physicalIy, if not for the continued and unwavering support of my husband, Erik Tamez Hrabovsky, and my children, who witnessed the breakages and ruptures in my welI-being during this threat of an attack on my person by a elose community member. Through this cirele ofhealing 1 have been able to rebuild my life, and to continue to advocate and research on the mandate ofmy Elders, Hereditary Chief, and the Chiefly peoples ofNdé who seek to be spiritualIy, physicalIy, and emotionalIy reunited with our homelands.

At this stage, 1 am, sadly, pessimistic about the cunent U.S. administrations' utter lack of acknowledgement (after many letter campaigns to President Obama) ofthe Texas-Mexico border walI crisis for Indigenous peoples. Without intemationallegal community action, 1 cannot see a change in the U.S. course. 1 view the obstruction to consultation, and obstruction to a jury trial at the 5th Circuit level-after three years of active1y engaging the court systems-as a elear sign that the U.S. govemment has no interest in altering its present policy.

This is to say that 1 predict, based upon the facts presented in our co-authored brief, as welI in other published papers forthcoming, that the signs ofimminent and increasing threat to Ndé knowledge, recognition, traditional ecological values, First Food systems, sustainability, family structure, decision-making organization and capability, and self-determination are at a great risk. It is elear that the U.S. govemment, the State ofTexas, and local authorities have no intention whatsover to review, re-evaluate, or redact the current policies to increase militarization to the Texas-Mexico border which specificalIy target only certain communities. The govemment show no sign oflistening to our Elders and Hereditary Chiefs outcries to dismantIe the wall, retum our lands, and move into dialogue about the Ndé land elaims and redress.

We have come face to face with a rogue, and Ndé are historicalIy and culturalIy positioned to know. Speaking about the murder ofEsequie1 Hemandez, one ofmy uneles, the Jumano Apache historian, Emique Madrid says, "How do you describe a nation that destroys its own Indigenous Peoples?" His reply: "Tyrannical." 1 feel that this aptIy describes my impression of the U.S. national behaviour and character relative to the border walI on the Texas-Mexico border.

We continue to pursue justice, and will continue to ask the intemationallegal community to assist us as we move to engage meaningful dialogue, consultation, Free Prior and Informed Consent on ongoing attempts to dispossess us, and for redress and restitution. My research in legal archives point to the reality ofNdé Aboriginal Title and 1 will continue to work toward the goal of a dignified resolution for Ndé future generations and broader humanity. Ndé are asking for nothing less than respectful and dignified consultation, FPIC, and the assistance from an intemational body with authority to support the process with the United States will be crucial to develop a reciprocal structure that is meaningful for Indigenous peoples. Ndé have onIy sought remedial procedures for peaceable solutions to improve the historical wrongs and alIeviate current­day suffering. As a witness to this, 1 firrnIy believe that a vigorous engagement with Indigenous intemational principIes and perspectives inform the actions taken by the intemational human rights legal community. This is desperately needed on the Texas-Mexico border for alI humanity and biodiversity .

Ahe'he, dagotee' gozhoo, (Thank you and Beauty A11 Around) Margo Tamez

HM0 T"",,':r Dr. Margo Tamez 5601 Pleasant ValIey Road

16

Vemon, British Columbia, Canada, VIB 3L6

Assistant Professol', University ofBritish Columbia Okanagan

Co-Founder, Lipan Apache W omen Defense El Calaboz Ranchería

Co-Founder, Emilio Institute fol' Indigenous and Human Rights El Calaboz Ranchería

17

Aprill0, 2012

To Whom it May Concern:

Eloisa G. Taméz, RN, PhD, FAAN

P.O. Box 1737

San Benito, Texas 78586

9562457119

[email protected]

I am Eloisa Garcfa Taméz, born and raised in El Calaboz, Texas, on a parcel of the land grant from the

King of Spain entitled San Pedro de Carrizitos. My ancestry is Spanish and Lipan Apache. In the 20th

century, the peoples all over the area were classified, as a matter of economic convenience and social

engineering, by the State of Texas and the United States as "Mexlcan-Americans" and "Hispanics", and

now as "Hispanic Native Americans".

Whereas I do not consider myself an 'expert' on the macro and meso levels of Upan Apache history,

beca use that is the knowledge expertise of the Hereditary Chief, Daniel Castro Romero, Jrl, and Council

members, such as Richard Gonzalez, as well as Lipan Apache scholars, Dr. Enrique Maestas, and Dr.

Margo Tamez. My specific expertise is in Indigenous customs of the knowledge and blessings passed

down to me from both my parents, and my grandparents who gave me life and memory. Indigenous

communities traditionally were not 'closed' racial communitles, and did not segrega te to the extent that

Anglos of Spain, England, Germany, and France did in the Americas. The Rio Grande Valley (RGV) was a

war zone after 1749, continually repressing any form of indigeneity--in all populations.

I can speak about the experiences, knowledge, and memory of the indigenous peoples who raised me in

El Calaboz, who, as I now know, were the direct descendants of Basque merchants, mlners, and ranchers

(who were technically Spanish 'citizens' who were of Euskara [Basque] ethnic origin, and a few who

were of the conquistador class, such as those who inter-marrled with indigenous women with land

encomienda grants. I am also the documented, direct descendant of Tlaxcalteca Hidalgos and laborers.

I am a documented direct descendant of Nahua land grantees of the Moctezuma Xocoyotzin hereditary

lineage.

The Indigenous peoples wlth these land-tenure histories were directly involved in the colonization of

the origlnallands of the Lipan Apaches along both sides of the Rlo Bravo/Rio Grande River an South

Texas. Many ofthem participated in missionizing the Llpan Apaches in missions allup and down the Rio

Bravo/Rio Grande. They also partic1pated In wars against resistant Lipan Apaches. They also inter­

married with Lipan Apaches, and Upan Apaches strateglcally Inter-married with land grant helrs along

the Rio Bravo/Rio Grande-to maintain important land-based relationships in their tradltional home­

lands. That is why there Is so much inter-kinship relations among Llpan Apaches and many Mexican

1

Indigenas throughout South Texas and the RGV as well as Northeast Mexlco to this day. However,

underlying the land grant titles, is the Aboriginal Title of Lipan Apache peoples, who underwent

persecution by alllevels of the Spanish, Mexican, Texan and U.S. colonization efforts of the region.

As an Indigenous person, I have lived in the everyday forms and ways of life of El Calaboz and, ves, I

proudly claim my expertise. llived it and, whlle living In my culture, I was unaware that I have been

living out an 'at risk' and 'targeted' life formo This is what I knew and I was saturated in it. Today, I am

known as a resilient survivor who has been taught from those who were not overly assimilated by

western education systems, and who still carried a slgnificant amount of traditlonal knowledge,

traditions, world views, customs, and ways in their everyday vernacular and way of living.

Indeed, I claim my authority on the ways of my indigenous heritage without doubt or any hesitation.

This is my quest, not only for me but for those who rema in ensconced and afraid to utter this claim

proudly and assertively for this belongs to me. Since the border wall became a huge ficture in the life of

my community and my personal being, I have received many letters, e-mails, phone ca lis and visits from

many indigenous peoples, such as Llpan Apaches, Mexicanos, and Native Americans, and now .. First

Nations peoples in Canada draw strength from my story and history. I am frequently informed of how

strongly the indigenous community identify with the layers of repression that I have been exposed to in

El Calaboz. This repression did not begin on August 7,2007; my ancestors had to constantly navigate

and negotiate their Indigenous identity--a complex one--in order Just to survive violence and

aggression. My story is thousands of peoples' stories.

The 21" century has brought continued repression, vlolation of human rights and denial of equal

protection. With all the new laws to assure tolerance and equal opportunities for all peoples, the poor,

the underrepresented, and particularly the indigenous to this North American Continent do not seem to

be on that list.

More recently, the U. S. government contacted me August 7, 2007, to inform me that my land was in the

path of the planned construction of the border wall. The controversy ensued since I contested the will

of the government stating that my human rights were belng violated as well as belng denied equal

protection. On Apr1l16, 2009, my plea in court was overturned and a federal judge ruled that the

government could proceed with the taking. A total of 0.26 acres was taken from my land whlch was

severed with three-quarters of the property left on the south side of the border wall. No direct access

to the south side of my property has been granted by the federal government as settlement still remalns

incomplete.

The U. S. government claims that they have consulted with me numerous times but no real consultation

of any kind occurred until we pressured for compliance with a Congressional mandate. The government

claimed consultation with me such examples as: a telephone call to my office by two border patrol

agents who were on speaker phone and whose introduction was not audible as well as a town hall

meeting that was held In Brownsville, Texas. The latter was designed as follow: 1) a podium with a few

chairs in front of it was prepared for attendees where the speaker was the contractor and not the

government representative, 2) questions were to be recorded or written into a computerized document

2

with no reassurance that these questions would be read, by whom, or when answers would be

forthcoming, 3) multitude of pictorial posters of the border wall plan were dlsplayed in the lobby with

border patrol agents in street clothes (not uniform) listening to our comments and givlng unsolicited

comments (I asked who they were and what their position was), 4) restricted entry into the planned

town-hall meeting, 5) armed federal and local officers. The most serious infraction in regards to lack of

consultation by the U. S. government occurred In Apri12009. The federal judge's order for the

government to consult with me before the actual construction started was blatantly violated.

Given the multitude of efforts to retain my land, I have faced tragic disappointment with the lack of

regard by the U. S. government. The government is loyal to the many corporations, both domestic and

foreign, who have made lucrative sums with this proJect but is content to rake over the indigenous in

our territory without regard to the violation of our IIvelihood. This invasion to my being and my

property has been chilllng and often doubt if I can really count on the U. S. government for safety even

while I have served my country faithfully and with dignity.

The U. S. government, even while they taking my land continue to keep me under surveillance. Border

patrol agents (BPA) and members of the International Boundary and Water Commission (IBWC) have

trespassed my land (El Calaboz and my present residence). When I discovered BPA (on foot) on my

property three different times in one month and I demanded that they exit my property immediately, I

then faced a second BPA in a vehicle blocking my driveway as I was attempting to leave for my work.

This same BPA (on the vehicle) tailgated me golng east of my property for about five miles. After the

third invasion by BPA on foot, the IBWC trespassed into my land and mowed the drainage ditch in the

rear of my property. When I confronted (sent my property map to indicate property IInes) the

Commissioner for the IBWC, I was told that there was no complicity with the BPA. No other property

was mowed. There is complicity between the Department of Homeland Security (DHS) and the IBWC.

The property in El Calaboz has speclal meaning for me. This is the land that my ancestors bequeathed to

my great grandparents, grandparents and parents. This is the land that I personally recall that my

grandfather and father worked on to carve alife for all of uso It is the soil and waters of the Rio Bravo

that are constant in our being. My father worked the fields planting each seed, spending long nights out

by the fields as he drew water from the Rio Bravo to channel its nourlshment to the various rows that he

had planted with the only resources he had-a plow and a horse. My father spent hours dusting the

plants with "azufre" to keep the insects away with the one other resource-a pair of goggles. He walked

miles and miles, up and down each row as he delicately treated each plant. At night, my mother would

prepare compresses for his burning eyes wlth a solutlon made from the "golondrina" plant. The goggles

did not keep all of the "azufre" dust from hls eyes. This land has meaning.

There is no end to my pain, suffering and fear because the U. S. government is relentless and is still

today pursuing the taking of more land. The U. S. government intends to 'relieve' my burden by taking

the land under the levee (which lies south of the border wall) and have offered me $100. According to

the Cameron County Appraisal District, the land under the leve e Is my property given that the IBWC only

secured a right of way in 1936. The IBWC wlll not commit to my request to install traffic control gates on

the levee at each comer of my property, communlcating that they must wait until DHS completes the

3

border wall project. To my knowledge the project was completed in April 2009. While the IBWC has

informed me that I have full authorlty to have this done, it has failed to make a decision in more than

two years. The installation of the traffic control gates would impede the BPA from travelling

continuously on the levee. The DHS has made the levee a highway; this activity directly impacts on the

purpose for which the levee was constructed-safety for the community from the floods of the Rio

Bravo.

Additionally, the IBWC is claiming a 300 feet right of way when my deed clearly shows only 100 feet.

Those lines have been completely violated by DHS beca use that agency took land immediately over the

100 feet right of way that IBWC had and, to my knowledge, IBWC representatives have not contested

that Invasion. The IBWC did not expose the 300 feet claim until after the controversy started wlth DHS.

My sentiment is that rather than pursue DHS, IBWC is pursuing my holdings.

Yours truly,

~.~7h,-i -,-Eloisa G. Taméz, RN, PhD, F~

4

"'/::(

]) ~ NV\ .--.....,-

-------~ Nde'

Andrew Nicholson

y~

111 ""

Lipan Apache Band of Texas 515 Freiling Orive, San Antonio, Texas 78213-3908 Website: http://www.lipanapachebandoftexas.com

Email: [email protected]

General Council

Daniel Castro Romero, Jr. Richard A. Gonzalez Virginia Castro Romero Frank A. Gonzalez

Ezequiel Cavazos Rudy Soto Perez Domingo Castro Carrillo

April5,2012 University of Texas Human Rights Clinic 727 East Dean Keeton Street Austin, Texas 78705

Re: Affidavit from Chairman Daniel Castro Romero, Hereditary Chief United Nations Committee on the Elimination of Racial Discrimination

Dear University of Texas Human Rights Clínic,

For the Record, I am the Nantá áñ (Hereditary Chie±) ofthe Ndé (Lipan Apaches) I am Traditional Oral Historian for the indigenous Cúelcahén Ndé (people ofthe Tal! Grass) with historie oversight ofthe, Tú é diné Ndé (Tough People ofthe Desert), Tú sis Ndé (Big Water People), Tas steé be glui Ndé (Rock Tied to Head People), Buil gl ün Ndé (Many Necklaces People), Hada'didla' Ndé (Lightning People), and Zuá Zuá Ndé (people ofthe Lava Beds) that have continuously Iived in their traditional homelands for over a miliueumem.

For the purpose ofthis affidavit I asked that fue "Lipan Apache" be identified by its ancestral and traditional name "Ndé, " rather than its colonial, anfuropological, historical, and Iínguistic imposed labelname Lipan Apache, subjugated onto the Ndé people at First Contact by Spanish Explorer Pánfilo de Narváez in Novem1Jer 1528.

The Ndé traditional homeland range consisted ofmore that "six mi/lion acres" ofland. In terms of size, the modero geographic homeland ranges from El Paso, Texas northeast to Lubbock extending southeast to Waco, Texas, extending down south to Victoria, Texas, extelldillg southwest to Browllsville, Texas, alld back Ilorth to El Paso, Texas.

Historical!y, alllegal instruments of peace, compacts, and contracts of agreements that span hundreds ofyears that were negotiated among the govemments ofMexico, Republic of Texas, Texas, and the United States Govemment have yet to be honored. These treaties and binding agreements include the Mission Valero de Bexar (The Alamo) - August 19, 1749, Colonia Del Nuevo Santander Lipan Apache Treaty - March 15, 1791, Alcaldes de las Villas de la Provincia Laredo Treaty • August 17, 1822, Live Oak Point Treaty . J anuary 8, 1838, Tehuacama Creek Treaty· October 9,1844 and San Saba Treaty - October 28, 1851.

Based on our "traditional knowledge system" the Ndé have preserved its distinct cultural identity and customs since memory. The Ndé Nation considers themselves as "stewards" and "guardians" of our traditional homeland range based four critical factors that are meshed into a larger conscious that are inclusive of its social, religious, spiritual, and cultural realms. These realms should not be confused or theorized with any European or colonial models based on historical accounts that are considered in error by the Ndé.

Factor number one; consist of the seasonal hunting cycles associated with the animal migration pattems that encompass most ofTexas and al! ofthe Mexican Border States. The tightly meshed Ndé band's would meet before and after the summer and spring solicits to trade, intermarry, socialized, and hunt. The Ndé people were semi nomadic and moved across large expanses in quest of game with the hunting being the main source of sustenance. Among the garne animal s sought were the bison, antelope, deer and other small animals, such as rabbits and possums. Hunting was not strictly an individual or group activity, and required family mobility in lhe seasonal pursuit of game.

The Ndé oftoday, traditional hunting practices have been eliminated with the building of the border wal!. Spiritual!y, the Ndé have been subgatted to alife without a center with the elimination of our traditional hunting practices and activities within lhe Rio Grande river system region that extends from New Mexico to the Gulf ofMexico. The Departrnent ofHomeland Security DHS cites and justifies the forced restrictions within and near the border wal! as a national security issues. However, lhe Ndé were never consulted by DHS in respects to disruption and "destruction" ofthe Ndé traditional homelands and environment that has suffered "irreversible" damage of our foods andanimal habits alike. As the true indigenous guardians the Ndé have suffered not only cultural shock, but a renewed distrust of a system of checks and balances that predate the founding of lhe US. Government.

Factor number two, deal with the harvesting, gathering, and planting of our traditional foods, such as the prickly pears, algerita, mesquite, carrizo cane, buffalo gourd seeds, peyote, maize, squash, other wild foodstuffs. Such methods inelude the "Three Sisters" planting and harvesting methods that were documented by the Spanish as having established, maintained, or revisited various regions throughout the Rio Grande Val!ey during the growing season, while gathering activities were continued.

The Ndé of today, continue to practice their time honored harvesting and gathering activities of the prickly pears, algerita, mesquite, carrizo cane, buffalo gourd seeds, and peyote. In 2007, the Lipan Apache Band of Texas Elders Committee, published the Identification and Reintroduction ofthe LipanApaches Foods with a federal grant through the U.S. Department of Health and Human Services, Administration for Children and Families, Administration for Native Americans, Grant No. 90NA7913-01, 2007. However, with the building of the border wall such activities have come to a halt due to the destruction of the N dé foods. The DHS has employed and sprayed defoliation and herbicides similar to the one use in Vietnam in the eradication of alllife on the Rio Grande river beds and between the border wal!. The eradication ofNdé foods, resulting in the systematic poisoning of our soils and water system. DHS c1aim 's that this was done in the name of national security despite its use of electronic and video surveillance of the region. The Ndé are of the strong belief that the U.S. Goveroment has employed a modero form of "genocide" in the destruction of our culture via the border wall and the use of the Patriot Act in securing lands with the destruction of our natural resources and plant life. The Ndé view the border wall as a replica of the "Berlin Wall" that has no social or moral place in our traditional homelands.

Factor number three, inc1ude the ceremonial and religious practices ofthe Ndé along the entire Rio Grande, Pecos, Nueces, Frio, Medina, Guadalupe, and San Antonio Rivers. In Texas Indígena: Origins and Migrations and Culture of Indigenous Peoples in South Texas, authored by Lipan Apache Band ofTexas Anthropologist, Enrique G.M. Maestas, PhD., the use ofwater and its sources are a part of our Puberty Ceremonies and Creation Stories that have been documented. Historically, the Ndé would meet in preselected areas on the Rio Grande regions every year that was based on availability of foods, water, and carrizo cane in hoisting our traditional ceremonies based on a matricidal system that goveros our ceremonies. The Ndé bands would meet before and after the summer and spring soloists to trade, interrnarry, socialized, and hun1.

The Ndé oftoday, are struggling to practice their Puberty Ceremonies with the elimination ofthe Rio Grande river prickly pears, algerita, mesquite, and carrizo cane that are essential in the ceremonies outlined. The Ndé religious communion with the earth and its environment are key to survival ofthe Ndé, a cultural, spiritual, and religious way oflife. The building ofthe border wall has forever altered the traditional method by which our religious and spiritual ceremony sites are selected. Again, the destruction ofthe Ndé foods in the Rio Grande region with the use of defoliation and herbicide agents by DHS has forever altered our spiritual and religious connection with Mother Earth. The Ndé consider the building of the border wall and the destruction of our foods an act ofaggression toward our way oflife. Among our Elders, the building ofthe wall is considered an act offorced "genocide" that has scared our land and

. traditional sense of equality. Without consultation of our elders and leaders the US Government has once again, failed to keep its word in protecting our scared sites that has resulted in the disruption of our \Vay of life in concert with all natural things in the Rio Grande Valley that extends north to El Paso, Texas.

Factor number four, includes the daily use of our traditional homelands along the entire Rio Grande, Pecos, Nueces, Frio, Medina, Guadalupe, and San Antonio Rivers. With the destruction ofNdé foods on water ways and restriction on the use of our traditional homelands has begun to take its tol1 on the cultural fiber that has balanced aH things among the Ndé.

The Ndé oftoday, are fearful of entering our traditional ceremonial sites between the Rio Grande river beds and the border wal1, c1aiming that the defoliation agents and herbicides used to kili the plant life will poison them personally. More importantIy, the Elders have instructed al1 Ndé to not eat our traditional foods from the other river systems in Texas, claiming that the U.S. Government has already sprayed defoliation agents and herbicides in these areas. For generations the Ndé have enjoyed this important connection with their home1ands that is now off limits due to the destruction that was placed upon the Ndé by DHS. Ndé members who have gone into the border wal1 section are required to give proofthat they reside in the area were they are entering. F 01' many of members, we/they have crossed these same paths for generations without giving proof of their origins and now are being harassed and detained by cultural sensitive DHS agents.

1 personally, entered the section and was asked what 1 was doing in the area, 1 stated that 1 was enjoying the view of our homeland. 1 was quickly bombarded by questions from twelve DHS agents. 1 refused to answer citing my standing under the Live Oak Treaty of 1838. As 1 refused to answer their questions, 1 was threaten with incarceration and interrogation. 1 finally, pulled out my military ID cardo 1 asked each of the twelve DHS agents, ifthey were ever in the military, none answered. 1 stated, that means 1 am patriotic right, 1 walked away. While conducting Ndé business in Mexico, 1 have been detained for vehicle inspection each ofthe four times 1 have crossed the U.S.-Mexican Border.

1 flnally asked why 1 was being inspected every time 1 crossed the border. 1 was told by DHS agent that my name was on a list of persons of interest that causes an automatically vehic1e inspection and harassment by DHS agents. DHS continues to violate standard court protocol of how it treats persons associated in lawsuits against DHS. The Ndé are under the understanding that to build the "Berlin Wall" in Europe was built to keep out communism and to deter acts of aggression from eastern bloc nations that cost billions of dollars over a generation. The Ndé people ask who we are being protected from. We have not experienced any acts of aggression from the south or Mexico, so why the wall? Many of elders, use an example, imagine waking up in New York City and looking across the bay to see that a twenty foot wall has been erected around the Statue ofLiberty, now imagine what the people of America would say? The answer is simple; a wall will never be built in the name of security around the Statue of Liberty, why? It has no social or moral place in America.

Recently, 1 had been listening to the Ndé Elders in general with regards to the border wall issue and how the Ndé feel that the U.S. Government has been placing much of its energy into causing disharmony among the Ndé. It must be noted that the Lipan Apache Band ofTexas has been investigated by the Internal Revenue Service and U.S. Department ofHealth and Human Services without cause. In examining this dilemma, our members are of the strong conviction that the Ndé are being punished for the actions Ms. Tamez took in preserving the Hada'didla' Ndé way of life. 1 also under the beliefthat the U.S. Government has imposed its own brand of genocide against the Ndé in its quest to silence Ms. Tamez and their miss ion to militarize the U.S.-Mexican Intemational Border.

In c1osing, the Ndé Nation fully supports Ms. Tamez's in her legal battle with the U.S. Government that will have a long lasting impact on our people for generations to come. Among, the Ndé oral traditions, it has a1ways been an Ndé woman that has brought the Ndé people back from the brink of disaster. Keep in mind that three previous governments have aH failed in completely eliminating our people from this world. Thus, I am ofthe strong conviction that the Ndé people have suffered at the hands ofthe U.S. Governments agencies.

I would like to thank the University ofTexas Human Rights Clinic for giving me this opportunity to articulate the Ndé position on the issues faced.

If you have any questions, please feel free to contact at (210) 789-7969.

Ndé Nanta' án Daniel Romero, Jr., M.S.W. General Council Chairman Lipan Apache Band ofTexas

The Big Water People of the Lipan Apache Nation of Texas

Aprilll,2012

Dazho,

My name is Steven Anthony Fernandez, I am the current leader ofthe Xlllle' Tsa Nde/Tu'TSSIl Nde Ba1ld afIlie Lipall Apaclle Nalloll ofTexas, My heritage is that ofthe old Nadahende (Natage) \Vho became Lipan Apache, Payaya Coahuiltecan, and Hispano, My farnily Iines extend fi'om Fernandez; Cadena; Longoria; Garcia; de la Garza-Fa1con; Hinojosa; Chapa, Benavides; Flores; Rodriguez; Montelongo; and many others crossing mto our family lineage. 1 am 14th generation ofthe Jose Matias Longoria Chapa family line fi'om the original Spanish Land Grants and descendent of the founders of Carmargo; Matamoros; Muzquiz; Satillo; Cerralvo; Laredo; La Grulla; Granajado; El Calaboz; San Pedro to name a fe\V.

1 currently reside in San Antonio, TX as most other Lipan Apache descendents do ( Sorne are members ofthe Lipan Apache Band ofTexas, \Vith others \Vho are members ofthe Lipan Apache Tribe ofTexas), but \Ve have no land to speak of any longer in part to the policies instituted by the Republic of Texas legislature. Our territory once extended from \Vest Texas to the very tip ofthe Texas- Mexico border, sharing this \Vith our kin the Hada' Didla Nde (Lightning Storrn Band), Tcha shka-ózhaye Nde (Little Breechcloth Band), Zifis'ti Nde (Rock tied to Head Band), and other Lipan and Natage bands, With the failure to recognize the Treaty of Hildalgo-Guadalupe, \Ve have lost lands that generations ofLipan-Natage people once called their homeland aIl in the name ofprogress through Hlvfanifest Destiny') policies. Within south Texas and northern areas ofMexico grows om medicines and resides our sacred places IVe hold fast to, this land is our mother and she has always provided for the Big Water People in kind and abundance.

Although this "border wall" does come through old o'ibal lands, our people have only been affected by it through cultural and psychologieal means. CulturaIly because no\V our traditional knowledge bases, i.e. Lipan Apache eld­ers, are no\V inaccessible and can only be contacted by going through border crossing red tape and its bureaucracy. This has made the band rely more on other groups and academic endeavors as our only sources of new informatiou and reference. Without these first hand witnesses to our historieal record, we lose valuable cultural knowledge aud facts that help our people to understand their own community. It also affects our people psychologically because it is a symbol ofthe imperialistic governance that has been forced on our community for over 500 years. Despite their best efforts to make us citizens ofthis country, they continue to ignore the pjight ofthe Indigenous peoples of this land and take for their own selfish reasons any resources they deem fit to utilize under the guise of"Homeland Security." Ihis Border defense initiative is just a reminder despite having the iIIusions of fteedom in this land, we still must ask for our sacred Eagle feathers, be recognized by this oppressor govermnent, register to obtain our tra­ditional medicines, and prove our Indigenous identities to bureaucrats and papel' pushers,

We have not had any contact or encounters IVith the Department of Homeland Security, but IVe are aIVare of other sections ofthe Border IVall in the \Vorks and in first stages of consouction. We realize that billions oftaxpayer dol­lars are being allocated to tbis project through legislative slight of hand tactics and padding of Senate and House

4711 Castle Stream San Antonio, Texas 210-902-2735

I '

The Big Water People of the Lipan Apache Nation of Texas

Aprilll,2012

Page 2

Bilis introduced for voting by eleeted representatives. This kind ofactivity remains unchecked and seems to be a sanctioned practice among those in pOIVer position of authority up in Washington De.

1 agree IVith both Eloisa and Margo Tamez when it comes to the future of our peopIe. This Declaration ofthe Rights ofIlldigenous Peoples show it is our right to access and repatriations of our ancestraIlands by our own communities that ifIVe allow this project to continue and IVe do not speak against the militarization ofthe border and the criminalization of other Indigenous groups along this "invisible Ene in the sand", we lose most if not al1 ancient cultural identities aud practices ifthis is allowed to move forward on a wel! based Jie. The Kune'Tsa have aud allVays wil! support the Tamez family, the Hada'Didla Nde, and the Lipan Apache community as well as all Indigenoius groups in and around the border of the United States and Mexico. These statements are true and accu­rate to the best of my abilities.

Sincerely

I'ladee Ií'ta'! (Lipan Apache) Lanza Volante (Espanol) . Steven A Fernandez Nata'anlTraditional Appointed Leader Kune'Tsa NdelKoniitsaa Nde/Tu' Tssn Nde Band Lipan Apache Nation ofTexas San Antonio, TX

4711 Castle Stream San Antonio, Texas 210-902-2735

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Mr. Arlel Dalitzky, Clinical Professor and Director-Buntan Rights Clinie e/o Mr. Andrew Nicholson The University ofTexllS at AustiD Sdtool ofLllw CCJl.324B 727 E. Dean KeetOD Stteet AustiD, Texas 78705

Re: Affidavit for United NatioDll Committee 011 the EJimination of Racial Discrim;nation; Early Warning Measures and Urgent Action Procedures Brief on ibe Texas-Mexico Border Wa1l

My name is April Cotte. 1 was born and raised in Massachusetts and got a BA in Sociology and Latin American Studies from Wesleyan University in CT. 1 bagan a career as an Outdoor Educator from 1991 until2009 when the Outward Bound program 1 worked at was dosed. I am currently a full time parent. For 14 winters, 1 Iived and worked as an Outward Bound Instructor and Course Director in the Rio Grande Outward Bound Program in Redford, Texas, (on what is currently the US Mexico Border), the Sierra Rica area across the Rio Grande River in Chihuahua, Mexico and during 7ofthose winters in the Copper Canyon in Chihuahua, Mexico.

Cross Cultural Experiences/Exchanges, backpacking and river travel along the Rio Grande were part ofthe Outward Bound educational expeditions in the South West Texas and the Chihuahua, Mexico region. Redford and the communities across the Río Grande from it are unrecognízed Jumano and Jumano-Apache communitíes and the Copper Canyon communities we visited are Tarahumara. 1 got to know

. indigenous people in these 3 areas as friends, colleagues and sorne, líke famíly. Through these relations, 1 met Lipan Apache and Chiracahua Apache relatives and friends and worked closely with Margo Tamez and a working group on the issue of the border wall in both of our communíties.

My work allowed me to see the border wall issue in a unique way because I spent so much time with rural indigenous people that are related on both sides of the Río Grande (currently the US/Mexico border). During my first years in the area, the Redford crossing was a Class B informal crossing and the Border Patrol allowed people to move freely back and forth across the river. In Mexico, 1 experienced how Tarahumara people Iived off the grld in traditionallndigenous ways and saw similar traditions in Redford and the surrounding areas In the US and Mexico.

1 experienced my lndigenous neighbors and their families living in sorne ways, very much as 1 understand they have lived for thousands ofyears; in clan compounds with their extended families, visiting each other, mentoring chíldren, respecting elders, connecting in person, sharing food, farmíng in the tlood plains of the Río Grande, Río Conchas and Río Nogales, tending the wild, grazing ¡¡vestock, using the desert and river corridor for recreation along with hunting, fishing, gatheríng cJay for pots, mud for houses and harvesting wild plants for medicine, food, baskets, firewood for cooking and warmth, and materíals for building homes ramadas, temascales and fences. And always, children accompanied adults, playing and learn¡ng. Our Outward Bound program also had educational experiences with Border Patrol representatives so we learned how they perceived the local situatíon.

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My time was split between the USjMexico border and a house on a Paclfic Ocean beach in Northern California so 1 saw many differences.

In Redford, the worst example ofmilitarylborder patrol violence against lndígenous people was in the 1997 US Marine killing of an 18 year 01d, Jumano-Apache, high school student, Esequiel Hernandez, Jr. some 200 yards from his horne while he was herdíng goats. At the time ofthe shooting, at the request ofthe Border Patrol, Marines' Joint Tas!<: Force 6 was secretly stationed in Redford, hidíng in the blmb in ghillie suits, monitoring activity at the traditional border crossing. This was a Class B crossing where tbe border patroI alIowed propIe to cross back and forth and trade goods.

From this tragedy we leamed the dangers ofhaving the military workíng among US civilians and tbat the border patrol had an inaccurate assessment of local conditions. They trained the marines that 70-75% ofthis community was invoIved in drug trafficking and armed srnuggling wlúch is oot possible in a community of 1 SO people tbat includes farmers house-!lllIkers, goat and cattle ranchers, soholars, teachers, 50 elementary school clúldren, elderly people and Outward Bound staff. Please see tl).e Congressional Oversight Investigation ofthe Death ofEsequiel Hernandez Jr.,' the Marine Corps Investigation to Inquire into tbe Circumstances Surroundíng the Joint Task. Force-6 Shooting Incident, II and the 2007 Documentary, The Bailad of Esequiel Hemandez, produced by Kieran Fitzgerald.

In 2008, an Indigenous leader ofthe farmersjranchers who spoke out against the IdIling of Esequiel Hemande:>: Ir. was watched and followed regularly with his family at his home and day and nigbt as he went from his home to his fields to irrigate. ·In one incident, a Border Patrol agenfharassed him, his wife and 2·year-old grandchild for an hour and a half in front of hls house until the farmer finally said in exasperation, "I'm going to hurt you. I'm going to call the Texas Rangers." A local FSr agent labeled this: U a terrorist thl'eat to a border patrol agent" and had him arrested with a felony charge a few days later.

Months after the f100ds when a Mexican farmer passed tite aboye US farmer's horses back across the Rio Grande because tltey were eating hls erops, the US farmer and his son were apprehended by Border Patrol agents who took the horses and took the men in for questioning. Itwas reported to the local papel' as the "smuggling of terrorist goods." The farmer went to the USDA olñee to pay fines and fiU in papelWork to get his horses bade and was told by the olñeer he met there, that he was under arrest when 5 Border Patrol agents came out from hiding in the horse trailer in combat gear and a BP vehic:le came from around back. In both instances, he was.questioned about who in Redford was doing drugs and terrorismo He was told he would be better off not living in Redford If he did not want to be arrested and questioned like this.

At the Presidio port of entry in 2008, a customs olñcial violated the sacred objects of a Chirachahua Apache medicine man arter he told her there was a federal Iaw protecting those objects. When he expressed concern about the harm this eould cause, 5 more agents approaehed with their hands on their guns. In a separate

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instance, a border patrol agent looked at the triballD cards of two Apaches and called them foreigners.

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Through ongoing phone calls with Dr. Eloisa Tamez in El Calaboz 1 witnessed the pressure that was put on her by multiple visits by government personal at her home and workplace pushing her to sign away rights to her land. We learned ofregular visits to her property by the border patrol day and night that seemed very intimldating. I also saw in person how looldng south from any polnt on the land that her people have been on for generations one is assaulted by the border wall, a monument to militarization and separation from the sacred waters of the Rio . Grande and her people on the other side of the river. It brought me to tears and is too painful to even imagine that happening in Redford. .

A local Indigenous scholar said, ·we don't have a wall in Presidio but we live with a virtual wall in which aH our movement ls monitored and we are regularly stopped and interrogated." At times people (including me) are stopped by multiple Border Patrol vehicles every time they leave their houses and are folIowed into their driveways by agents that sometimes get out of vehicles with guns out high emotions, questions and commands when family members of all ages are present BP vehlcles drive at times at night with lights out past houses and roads where children are playing. Border Patrol agents were questioning farmers that were fixing their pumps at the river, and at a the water dlstrict board meeting and telling people they should not be at the river or on the levy. But their livelihood depends on being at the river and on the levee. People do not know what their rights are in the border region.

With the current shooting and unwarranted charges ¡¡nd arrests atop a violent history against "Indians" in the Redford area, Indlgenous people live in fear but do not want to leave their place and are reluctant to expose their existence for fear that knowledge of their identity or culture could be used against them. A local Indigenous scholar fears that historical and cultural information he writes' on his people to pass on their knowledge and help in their recognltion process will be used against them in Human Terrain Syst:ems.

After each assault by the Border Patrol, FBI, military and other agencies on community members, there are losses, fear increases and more local Indlgenous people move out or don't return. Mer the Idlling of Esequiél Hernandez Jr. by the marines, people gave away their goats and ended a multi year cooperative goat cheese factary initiative that many herders were involved in. The farmer /rancher leader moved out to avoid continuing to get arrest:ed and be harassed by the FBI and Border Patrol. He drives 4 hours each way to come to Redford Water District Meetings.

lndirect consequences of the militaIization and actions by other agencies further challenge these low·income, at Iisk communities and the biodiversity ofthe region. In Redford, Presidio and other communities, the increasing population oí high paid . Federal agents effects local elections and political decisions. In 2002, the Marfa

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Public School District closed tite Redford Elemental")' School at tite same time tltey built a new Gymnasium for María children. Currently, an agency ofthe US government is eradicating Salt Cedars along tite Rio Grande in tite Big Bend area but they are not being replaced with other trees.

Mer the flood of 2008, an agency of the US Government told Redford farmers that it was not economically feasible to fi" tlteir levee. In communities surrounding Redford, namely Presidio TX and tite communities across the river in Mexico, money was given to fix the levees and farros. At tite same time, tltere was an offer byan environmental organization to pay farro owners some $300.00 per acre to put the land in permanent conservancy. There is currently pressure from sorne water district members to sign the Redford Water District farms and levies over to a govemment agency.

The Border wall and militarization in our communities inhibits the mentoring of children by elders necessary for protection of biodiversity and cultural renewal. Though the years in Redford, I witnessed Indigenous people of aU ages moving tltrough the landscape on botlt sides of tite rlver doing traditional activities. Chlldren tag along witlt parents, grandparents and relatives who are mentoring them in the fields, the desert and the river corridor. I've seen children Iearning from elders, adults and other children how to harvest cactus berries, fruits, tlowers, pads and roots, which plants to use fer medicines and basket making, which c1ay for pottery and mud for houses, how to swim and spend time in the cool shade, how to hunt and fish in the river corridor and the desert, what different animal and bird behaviors and signs mean, how to predict the weather, how to use local materíals to feed animals, coJlect human and animal medicine, make fences and traps, build and fix adobe houses, roofs, shade structures and sweat IOdges. Throughout these experiences, relationships between allliving things are taught and respect is developed.

With the increased harassment by the Border Patrol and FSI, oflocal people using the river corridor, Jumano.Apaches are not sure they are allowed to do traditional activities and are scared they couId be arrested or cause trouble for tlteir families by going neal' the river. Familles are reluctant to allow children te roam freely through the desert and the roads for fear they wlll be stopped by the Border Patrol

During my visit to El Calaboz, 1 saw tite border wall challenge some of the traditional education oftlte grandchildren oftlte Lipan Apache elderwe were visiting. Where they should have been able to explore daily through tite land down to the river and bring stories and questions back to their grandmother and other relati\tes, instead, they only went to the river corridor a few times in a week. A grandmother told tales of berry picking along tite river but the children could no longer go easily nor aJone to the rlver behind her house to see ifthe berries were ripe. The children watched the birds, but the wall modified the bird language and behaviors so we could not count on tlteir communication to infonn us of the activities and movement of other species on the land. We tracked animals and saw them waste energy to

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move all the way around the wall. At one point, tracks we were following suggested a rabbit had crossed through the wall but the coyote chasing it eould not.

One day we walked to Eloisa Tamez' access to the river with a group of frlends and relatives. Some elders did not make it because it was too far to walk around the wall. Soon after we crossed the opening in the wall, we were approaehed by 2 border patrol vehicles that scared away wildlife we might haya seen and shifted the focus many of us had on examining plants. animal tracks and bird behaviors with elder mentors. The agents then queStioned and conversed with uS, delaying our walk. For me was stressful because the wall made our walk tu the other side long and the interaction with t1ie bordar patrol took more time whUe my 6 month old, nursing baby was waiting for me way back at the h(>use.

1 am concerned that there will be continued and increased militarization of these Indigenous communities on the US/Mexico border based on propaganda calling for a war on Narco-Terrorism as put forth in the report by General Barry McAffry and Robert H. Scales, PhD. Texas Border Securíty: A Strategic MiJitary Assessment.Ul

There was also housing built for 200 more Border Patrol agents in Presidio, TIC which borders Redford and has a population of about 6,000.

1 am concerned that more killings and violence upon innocent Americans could occur because the recruitment for Homeland Security law enforcement jobs uses military propaganda, Veterans returning from the wars in the Mlaale East fill these jobs, and receive training and strategic military assessments that faU to show trua local conditions in our communities (in fact, positioning local indigenous people as dangerous enemies).

In both Redford and El Calahoz: 'am con cerned that the Indigenous residents and all residents are harassed, watched, hunted, detained and at risk af arrest by the Border Patrol and other US government agencies when they do anything in the river eomdor. This creates an unsafe enviranment for people and causes them to fear doing things at the river that their people have always done. In El Calaboz, the extra walk/drive required to access the river corridor al so deters Dr. Bloisa Tamez, her relatives and other Lipan Apaches from access. Thls essentially blocks indigenous people from traditional cultural properties, and education of the young. and could be used in the future to claim that Indigenous people do not require access to the rlver corridor any more.

It concerns me that if Govemment agencies take over the land and environmental agencies ¡nfluence locals to change use patterns on the land, it wiIl seem like it is no longer needed as a traditional cultural property ofIndigenous people and will be even less protected trom the border wall. The biodiversity of the river corrídor is at risk if the Indigenous peopIe that utilize, tend, and protect it are not able to access it and mentor their children in their relationship with the land.

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i 10Sth Congress 2nd Session Committee Print Ser. No. 11 Oversight Investigatíon ofthe Death ofEsequie1 Rernandez, Jr.,

#1554 P.007l008

A Report of Chainnan Larnar Smith to the Subcommittee on lmmigration Clairns of the Committee on the Judiciary Rouse ofRepresentatives Henry J. Hyde, Chairman, November 1998 US Governrnent Printing Office Washington: 1998

ii United Sutes Marine Corps Investigation to Inquire into the Circumstances Surrounding the Joint Task Force-6 (JTF·6) Shooting lncident that Occurred on 20 May 1997 Near fue Border Between the United States and Mexico, From: Major General John T. Coyne USMC To: Comrnanding General, 1 Marine Expeditionary Force 5800 JAGT/jtc 07 Apr 98.

ji! Texas Border Securtty: A Strateglc Military Assessment, General Barry R. McCaffrey and Robert H. Scales, PhD. 9/20/2011, Colgen LP .

Sincerely,

April Elisabeth Corte

17 ShelterCove

Pacifica, CA 94044

and

PO Box145

Redford, TX 79846

and Robert H. ScaJes, PHD, 9/20/2011, Colgan LP.

6

Affidavit of Celestino Gallegos regarding

the construction of the border wall in Texas.

My name is Celestino Gallegos and l am an attomey Iicensed in the State of Texas. l was the

Team Manager for the Border Ríghts Team at Texas Río Grande Legal Aid, lnc. ("TRLA") from 2007

unti! 2010. TRLA is a non-profit organization that provides civil legal aid for low-income Americans in

al! of the counties located on the Texas-Mexico border, starting in the city of El Paso in the west to the

city of Brownsville, in the soutbeast. From 2007 to 2010, l coordiuated of a team of attomeys, paralegals,

and outreach workers who dealt with community education and Iitigation regarding the land

condemnation along the border for the construction of tbe border wal! in the Texan cities of El Paso,

Eagle Pass, and in the Río Grande Val!ey.

TRLA was counsel of record in six condemnation cases brought in federal court, both at the

District Court level and before the Fifth Circuit Court of Appeals. Additional!y, we advised about two

dozen individual property owners on issues relating to the border wal! constructión, as wel! as dozens

more through commnnity forums and meetings. Al! of our clients regarding the border wal! cases were

Mexican-Americans with diverse backgrounds: some were first generation immigrants, and others had

long historical and family ties to the area.

The legal and legislative background of the construction of the border wall set the stage for the

violation of individual rights tbat took place when the Department of Homeland Security (DHS), the

administrative agency that was in charge of the border fencing construction, carried out the project.

Congress gave DHS a lot of power through two legislative acts: the Secure Fence Act and the Real ID

Act. The Secure Fence Act gave DHS the authority to condemn property "along the border" for the

purposes of constructing a double layer fence with roads running along the ban'ier, along tbe entire length

ofthe U.S.-Mexico border. Section 102 ofthe REAL ID Act, al!owed for a waiver of compliance with

many environmental and cultural protection laws for the construction of the border wall. The only check

on this otherwise unbridled concession of power to DHS, was the requirement from an amendment to the

Secure Fence Act which required consultation with the local and state officials in the affected

communities regarding the appropriate type ofborder security infrastructure to be constructed in along the

U.S. - Mexico border.

In addition to the broad authority given to DHS that was specific to the Border Wal! project, U.S.

law regarding land condemnation is very unfavorable to prívate property owners whose property is being

taken by the govemment. The procedure for filing a land condemnation case begins with a govemment

lawsuit against a landowner whose property is going to be purchased for a "public use" by the

govemment. There used to be a doctrine of defense against condemnation of land that was not for "public

use," but this was severely diluted by the Supreme Court in tbe case of Kelo v. The City ofNew London in

which eminent domain was used justify the condemnation of privately owned buildings to a group of

private investors who intended to build a shopping center on the property. The Supreme Court justified

the condemnation by finding that economic development is a permissible public use, even if the

condemnation does not result in ownership by a public entity but rather another private owner. There was

no legal possibility for challenging the construction of the border wal! under the "public use" doctrine,

Page 1 of 5

since the federal government was going to own the land, and the border wall was justified on national

security grounds.

Therefore, the only defense~ available left for most landowners in the border wall cases was to

either challenge the government's sitmg of the project on their property, or to fight over the amourit of

money that they would be compensated for the construction of the border wall. If the owner disagrees

with the govemment offer of compensation for the use ofhis or her property, he or she will have to hire a

lawyer and several other experts to conduct studies that prove that the property has a higher value, or that

the remaining property is going to be devalued as a result of the government's use of the neighboring

property. This procedure is very costly in terms of both time and money. Other than attomey's fees,

there are fees for hiring appraisers and other real estate experts to challenge the govemment's valuation of

land. In addition to the law favoring the federal govemment, they also have a lot of resources, including a

large legal department to handle these cases. For example, during one meeting with DHS, three attomeys

from the Department of Justice, one attomey from lhe Department of Homeland Security, a land-man

from the U.S. Army Corps ofEngineers, and three border patrol agents were present to negotiate with my

client and me about the location of the border wal\ through his property.

During lhe initial planning phase of the construction of the border wall in Texas, DHS offered

minimal explanations to affected landowners about lhe process, options, and legal consequences related to

lhe condemnation ofproperties for the construction ofthe border wal\. The initial DHS tactic was to send

border patrol officers door to door in full uniform with side arms, to present land owner's in the border

wal! construction area with the government's waiver of property rights and request their signatures.

When a landowner refused to sign the waiver, DHS would threaten to sue them. In my experience as an

attomey, most people don't want to deal with a lawsuil, so they would quickly give in and signo Low­

income families are especially reluctant to fight the govemment because they don't have the resources,

and they fear the power and authority of the government. Many property owners were initially coerced or

otherwise convinced to sign the waiver admitting access to govemment agents without ful! disclosure of

the content because of these tactícs. The broad wording of the initial waiver allowed govemment agents

free access to landowners' property allegedly for the purposes of surveying, but also al\owed destruction

of any obstacles that would impede the construction of the border wal\.

In my opinion, the reason that the govemment withheld the lack of infOlmation is that DHS had

two conflicting purposes. On the one hand, as a govemment agency responding to the public, DHS had

the obligation to explain to people the means, motívations, and methods of the border wal! construction.

At the same time, as a purchaser of land, DHS was trying to keep costs down so that the project would

come in on budget. This led to sorne of the tactics that were complained about from the outset:

convincing people to sign waivers, not advising people of their legal rights, threatening legal action, and

sending people "Iow ball" offers for the acquisition of their property rights.

One of my clients, an elderly couple from Los Ebanos, Texas, initially carne to us because border

patrol agents carne knocking on their doors and requested that they sign the aforementioned waiver to

permit DHS access their land for surveying purposes. The border patrol agents spoke Spanish, but the

waiver documents were in English. The elderly couple was primarily Spanish speaking naturalized

Page 2 of 5

citizens with little fonnal education. The reason that they called our organization was because they did

not understand what they had refused to sigu. When they were served with a condemnation lawsuit a

couple of weeks later, these documents were also in English. They were initially very concemed about

being sued by the federal government, and we met with them extensively to explain that they had done

nothing wrong by exercising their rights.

It was only afier press coverage about pushback from the community and opposition from many

local govemment officials that DHS made a show of consultation with the community that was required

by the Secure Fence Act. Unfortunately, the culture of DHS permeated these "public information

sessions" in which there more security agents were present than community members. Oral presentations

were given, but no one was alIowed to ask questions 01' offer any comments. The message was clear: the

govemment was going to do this according to its own pre-conceived plan, border residents would have to

comply, and they were only providing information to border communities as a courtesy. 1 would describe

DHS compliance with fue community consultation requirement as a top down security focused effort.

The border fence project and the underlying legislation were subjected to several legal challenges

in courts across the border. Several environmental groups challenged the constitutionality of the broad

waiver of compliance with environmental laws from Section 102 of the REAL ID Act. They lost in

federal district court in Arizona, and the Supreme Court denied fue petition for certiorari to the Supreme

Court, ending that constitutional challenge. TRLA tried to challenge the authority of the govemment to

construct the fence so far from the actual border, but this argument was rejected by the District Court.

There were attempts to challenge the condemnation process by raising defenses of insufficient due

process. The Texas Civil Rights Project and the Center for Constitutional Rights attempted to bring a

class action lawsuit against the govemment, requesting an injunction that would have halted the

construction of the fence. The injunction was denied by the District Court, and the class was not certified.

While that case languished in Court the fence was built.

The exercise of the govemment' s eminent domain power left landowners little legal recourse to

actual1y oppose the use of their land for the construction of the border fence. They did not have any

opportunity for input on the situs of the fence on their land, nor did they have an oppOltunity to discuss

the desigu or operation of the fence. This led to a lot of confusion, resentment, and suspicion of special

favors paid to landowners whose land was not fenced since the fence was not continuous.

It took a siguificant amount of time in Iitigation just to leam the federal govemment's rationale

for the placement of the wall. The answer had little to do with security, and everything to do with

compliance with the border treaty with Mexico. In reality, the success of the projectdid not consider

areas where illegal activity occurred, but rather whether the area where the wall was to be constructed

would impermissibly alter the flow of the river. Whether or not owners had their land condemned was

just a question of whether a levee ran through their properties. This was the reason that the wal! was built

as far as a quarter of mile from lhe actual border in many locations, cutting tracts of property off from the

river.

Page 3 01 5

The results of lhe blunt force and wide latitude given to the DHS to plan, construct, maintain, and

patrol the border wall significantly reduced lhe utility of the land for many landowners along the

riverbank. The wall was not constructed right on the banks of the river. It was typically built several

hundred yards away from the actual riverbank, in sorne cases up to a quarter of a mile. This Ieft Iarge

swaths of land between the river and the wall inaccessibIe to the property owner. Access to Iand on both

sides of the fence was a stieking point for many peopIe. DHS proposed building gates and providing

codes or keys to those gates. They didn't want to build them everywhere, so the big fight was how far

down the road someone would have to drive to get to a gate where s/he could eross the fence and then

drive back along lhe fenee to get to their land.

The government's plan never considered how these landowners were going to access their

riverfront property neither felt that it should not have to reimburse them for the Ioss of value of this "no­

man's land" left in limbo between the river and the wall. Many of the landowners willingly allowed

federal agents on their land for preliminary studies, with the promise of continued negotiations over the

finer points of the precise location of the fence, access to wells, irrigation gates, and general access to

areas cut off by the fence. However, these landowners were angered when their concerns were put on the

back burner for expediency's sake.

1 suspect that well over half of the people whose land was condemned for construction of the

border wall were unrepresented by an attorney during those negotiations/proceedings. The more affluent

landowners, on the other hand, hired lawyers who fought the issue of devaluation of the remaining land,

and eventually reeeived higher compensation than what they were initially offered for their land. One of

my own clients was paid many thousands of dollars more than the initial "low ball" offer that the

government presented at the beginning of the condemnation process, confmning the important role of

counsel for an affeeted landowner. Ironieally, landowners who agreed to negotiate with DHS in order to

avoid a lawsuit, were sued as a matter of procedure despite their compliance.

The border wall effects on the civil and human rights of the people who live in the path of the

fence are alarming and constitute violations of several Artieles of the Universal Declaration of Human

Rights (UDHR) as well as lhe International Convention on Civil and Political Rights (ICCPR). The idea

of fencing off lhe southern border of the United States, while leaving the northern border relatively free

and um'estrained is facially discriminatory. Artieles 1, 2, and 27 of the ICCPR speak to the rights of

people to freedom of social and cultural deve1opment, as well as respect for human rights without

distinction of race, color, language, or social origin, and the right of ethnic minorities within a member

state to eIljoy lheir own culture. The construction of the border wall is a significant infringement on the

rights of people in the Texas-Mexico border area, which is rich in multi-cultural tradition and history that

is unique to both nations. The residents of the southern border of the U.S. and the northern border of

Mexico have long standing cultural, familial, and economic ties that distinguish each region internally

from the dominant culture of lheir respective States. The U.S. has unilaterally engaged in a deliberate

policy of cultural repression in tbis region under the guise of security concerns.

While seeurity concerns form an exeeption to tbe right of freedom of movement within tbe

boundaries of a member state found in Artiele 12 oftbe ICCPR, this exception is ineonsistent with other

Page 4 of 5

principies found in the Convention, and is otherwise unfounded as a justification for the border wall. This

barrier serves as a restriction on free movement that has no justification other than an expedient loeation

that would not put the U .S. at risk of violation of its border treaty with Mexieo.

The disproportionate effect on the poor and on those of Mexican deseent is also a violation of

Articles 2 and 27 of the ICCPR. As noted aboye, the construction of the border wall in Texas using the

means provided by the Secure Fence Act impacted the residents of sorne of the poorest counties in the

U.S. The tactics authorized and utilized by DHS would never have been tolerated in more affluent

communities. The secretive nature ofthe project and the unwillingness ofthe U.S. govemment to divulge

its criteria for selecting the condemned properties would not have been tolerated in other areas of the

country. The indiffel'ence and unwillingness of the U.S. government to consider altematives to its

planned fence construction display the arrogance of a govemment that sought to impose the fence project

on a community that was ill-equipped to mount legal challenges for each affected landowner.

1 swear under the penalty of perjury that the forgoing is a true and accurate statement of facts, to

the best of my kuowledge.

~,~

STATE OF WASHINGTON

COUNTY OF PIERCE

) ) )

CERTIFICATION

Celestino Gallegos, being first duly swom on oath, deposes and says: That he is the declarant in

<h, [m,gom, ,ffi""d. kno= <h, ro,,,," <h=of AAd boll,,," d. ~

Page 5 of 5

Celestino Gallegos, Affiant

State ofWashington Residing at '""1"C¡ e <"->-na

My Commission expires \ O bo. \ I ~

Affidavlt of Corlnna Spencer-Scheurich Regional Direclor Attorney al Law

South Texas Civil Rights Project

My na me is Corinna Spencer-Scheurich and I am an attorney at the Soulh Texas Civil Rights Projecl, a nonprofit organization thal promoles racial, social, and economic justice Ihrough litigalion, education, and social services for low and moderale-income communities, who Iradltionally are Ihe leasl able lo defend Ihemselves in Texas.

Through my organization, I provided legal counsel lo properly owners during Ihe planning and conslruction of Ihe border wall in Texas. My organization was also local counsel for Ihe lawsuils against Dr. Eloisa Tamez, a Lipan Apache band member and owner of Ihe properly El Calaboz, one of Ihe lands affected by Ihe conslruction of Ihe border wali.

I wilnessed how, in Ihe initial planning of Ihe border wall conslruction, Ihere was no official communication from Ihe federal government lo landowners about Ihe land laking process/surveying/mapping in the area. Many of them were led to believe thal Ihe federal governmenl was asking for access to Iheir land for Border Palrol agenls, which was already happening before Ihe constructlon of the border wali. The majorily of families I talked to in the beginning did not undersland that Ihe government was planning on building a wall on Iheir land and had signed away a lemporary easement lo Ihelr properlies Ihal was extremely broad withou! any compensation. Landowners did no! understand from Ihe document that Ihe lemporary easemenl was lo allow survey crews on Iheir properly and Ihal it gave Ihem Ihe righl lo remove slruclures and landscaping before any permanenl eminenl domain was going lo happen. Furlhermore, Ihis document was very difflcult lo understand for people who are nol familiar with legal lerms. By nalure, Ihe lack of Information from Ihe federal government lo compel people lo slgn away righls lo their properlies was a coercive melhod. Governmenl officials vlsiled people's homes to try lo convince them lo signo Peler Schey, from our parlner organization, the Cenler for Human Righls and Conslltutional Law, led an efforl to attack Ihe lack of information and the way Ihal Ihe government was attempting lo take Ihe land lo preven! Ihe land !aking. However, Ihis effort was unsuccessful in cour!.

Dr. Tamez sounded Ihe alarm aboul Ihe federal governmen!'s attempl lo gel a temporary easemenl on her property in Ihe fall of 2007. Along wllh Ihe attorneys from Texas Rio Grande Legal Aid (nTRLAn), I conducted numerous outreach meetings lo inform landowners of Ihell' righls and lo collecl informatlon on Ihe governmenl actions in Ihe beginning. We Iried lo find represenlation for as many as possible; however, we were unable lo reach everyone Ihrough Ihese efforts because many residenls were loo scared lo go up againsl Ihe federal government. In general, people who live along the Texas-Mexico border have eilher IIved Ihere for generations or are firsl generation Immigranl famllies. The long-time residents seemed lo be somewhal resigned lo Ihe facllhallhey had no power when faclng up lo the governmenl of Ihe Uniled Slales, while immigranls were loo scared lo "cause lrouble," believing Iha! any opposltion lo the border wall conslruclion mighl have negative consequences for Iheir familles due to federal immigratlon policies.

Surveyors invaded my clients' privacy by walking througb thelr land. The wall went up very quickly for Dr. Tamez; and I believe Benito Garcia, another former client, lost access to irrigatlon water that was his right. The Real ID Act and other laws that gave the government the power to build the wall waived many environmental, indigenous, and social protection laws. In the end it was almost impossible to prevent the taking of the land, and the exercise of eminent domain powers meant that all of our clients lost pieces of their property right in the middle of their land. The land lost was up to a mile from the actual border. From my experlence as a lawyer, eminent domain is very hard to defend against.

Most of the cases reached an agreement because everythlng came down to money. There was no beUer prospect of winning anything else. Most landowners felt that they would do better by settling instead of lelting a jury choose the amount. South Texas Civil Rights Praject represented some of these cases, along with Texas Rio Grande Legal Aid, and the Center for Human Rights and Constitutlonal Law, two nonprofit organizations that offer free legal aid to people who meet cerlaln requlrements. Other lawyers represented more wealthy landowners, universitíes, school districts, and businesses. I wasnot parly to the compensation settlements, but as far as I understand, those cases where individuals had an attorney ended up with much more fair compensation for the landowners.

It Is also important to mentíon that the federal government avoided certain properties, and after looking at the maps, I can tell no rhyme or reason for the locations that they chose. Despite our attempts to get information regarding the placement of the wall, we have never been given a reason for Its locations.

The border wall has dramatically changed the border community. Before the wall, the Border Patrol enjoyed a generally positive relationship with landowners along the border. Border Patrol agents knew individual owners and many of the landowners were sympathetic about the Job that these federal agents were doing. In my opinion, the existence of the wall has soured the relationship between the Border Patrol and long-time residents. Landowners In Cameran County believed that prior efforls to cut down on drug and arms smuggling through electronic monitoring systems had been successful in their area, and did not understand how or why a wall was necessary when very little movement was happening In their area. l believe this undermined the relationshlp between landowners and Border Patro!. Nowadays, the wall and what it represents to landowners serve as a daily reminder of the injustlce and capriciousness of the policies of the U. S. government on border securlty.

State of Texas, United States, April10th, 2012.

l swear under the penalty of perJury that the forgoing is a true and accurate statement of facls,

to the best of my knowledge. ao 2 ~2Y-~ .......................... Y.. ............................ . Corinna sPeF~er-scheurich

Affidavit of Alberto Mesta

Managing Attorney for El Paso ofliee at Texas Río Grande Legal Aid, Ine. (TRLA)

My name is Alberto Mesta, Jr. and I am the managing attorney for the El Paso office of Texas Rio Grande Legal Aid, Ine. (TRLA), a nonprofit organization that provides free legal services to the residents of Southwest Texas who are unable to afford legal representation. As part of the border rights team of TRLA, I contributed to the project with legal researeh and I also disseminated information in the border eily of El Paso and attended public forums being held by Deparlmenl of Homeland Security (DHS) and clienls con cerned by the border wall construction plans. The border city of El Paso is parl of the district 01 US Congressman Silvestre Reyes, a former border palrol chlef. Congressman Reyes starled the "Border Security Conference" at the University 01 Texas at El Paso, at which bi-national topics were discussed and vendors who made up the majority of the defense conlraels displayed Ihe lalest in military and securi!y options lor Ihe border.

Residents potentially affeeted by the border wall experienced a lot of anxiely and slress during 2007 and 2008 beca use DHS provided Ii!tle informalion to Ihe publie about the specilic delails 01 the border wall such as ils localion, limeline for conslruction, or properlies lo be affecled. DHS agenls provided,documents lo affecled landowners that were very difficull lo understand and none of thos'e documen!s were available in Spanish, allhough many residenls in this area have limited English Pfoficiency. As a result, many organizations participated in prótests againsl Ihe construction 01 the border wall in the area of the border cily of El Paso, including a 30-mile walk along the border to raise awareness.

The construction of the border wall in El Paso area has had very negative consequences for the environmenl andfor Ihe colonias, which are residential areas along the Texas-Mexico border Ihat often lack some of the mos! basic living necessities su eh as potable water and sewer syslems, eleclricity, paved roads, and safe and sanitary housing. The construction 01 the border wall furlher deterioraled the living eondilions in Ihe colonias by increasing noise and pollulion, and by the ever-increasing presence 01 border palrol agents and technology. Some olour clients live in Ihose areas because my organizalion has qualification guidelines that require clients to meet cerlain poverty levels or be long lo a community organization whose membership is comprised 01 people who would qualify individually for our services. Those that qualilied lor TRLA oblained legal represenlalion at no charge, but il sllll look many resources for our organizalion lo represenl our clients aflecled by the border wall. I personally assumed a plethora of cases in which homeowners gol letlers offeríng compensation for very mini mal amounls. In my opinion, !he agreemenl lo access land was very one-slded in favor of Ihe government.

Slarting in 2007, severallawsuits were filed by Ihe governmenl agains! landowners and vice versa. Severallawsuils were filed againsl severallandowners in Cameron Counly by DHS in Ihe Soulhern District of Texas on January 17, 2008, including a suil againstthe Public Utilily District 01 Brownsville. Instead of merely granling Ihe ex parle relief requested by Ihe government, Judge Andrew Hanen sel Ihe cases lor hearing on January 25, 2008. Afler a hearing, Ihe Judge expressed some concern aboul potential damage that might be done by agents conducling surveys and investigalory work lor Ihe construction of the border wall, as well

as DHS efforts to contact and provide notice to affected landowners. Nonetheless, he granted DHS request for access to the defendant's property.

On January 31, 2008, more lawsuits were filed against landowners in the Rio Grande Valley, including landowners in Hidalgo County. Dr. Eloisa Tamez was a named plaintiff in one of these suits. I represented TRLA clients Pamela Rivas and the Muñiz family who were also named plaintiffs. A hearing was set in Brownsville for February 8, 2008 in front of Judge Hanen.

On February 1, 2008, TRLA filed responses to the condemnation suit in McAllen District Court. TRLA's response requested that the condemnation proceeding be halted beca use Ihe government failed to negotiate any price terms with landowners befo re filing suit, a necessary requirement under the statute cited in the condemnation lawsuit, 40 U.S.C.§3114.

Five days afler, the Center for Human Rights and Constitutional Law (CHRCL) filed a class action lawsuit against DHS claiming that the procedures used to condemn the land for access were improper, and that the government's suits should be dismissed. CHRCL cited the Appropriations Act requirement for consultation wlth local communities and the provisions of the REAL ID Act as a basis for their argument. The Court heard arguments from the parties on February 7, 2008. No decision was issued at the conclusion of oral argument on that day.

The Cases reached the Fifth Circuit Court of Appeals where the Department of Homeland .. Security's actions were upheld, thus ending the litigation. There were litlle alternative legal remedies available for affected landowners. In this case, the concept of homeland security was contradictory with the American doctrine which defends individual property rights. Our clients disagreed with the decision bul everyone had to abide by the court's ruling.

State ofTexas, United States, April16, 2012.-

I swear under the penalty of perjury that lhe foregoing is a true and accurate statemenl of facts, lo the best of my knowledge.

County

Locator

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RESOLUTION NO. 2007-071

A RESOLUTION OF THE CITY COMMISSION OF BROWNSVILLE EXPRESSING OPPOSITION TO THE CONSTRUCTION OF A BORDER W ALL ALONG THE BROWNSVILLE, TEXAS -MATAMOROS, MEXICO BORDER.

WHEREAS, we the City Cornmission and the resldents of the City of Brownsville agree w1th Valley Interfalth that we should "Invest in fanlllies - not the wall"; and

WHEREAS, together wilh the Texas Border Coalition and the RlO Grande Valley Network of organizatlOns oppose spending our tax dollars on the constl'uctíon of an ineffectlve border wal! that can eas11y be breached !TI seven (7) mmutes; and

WHEREAS, $1.2 bJlhon of federal funds, mtended for the border wa11, should be invested m hea1lh care, housíng, educahon, job Iraining, and infrastructure that w!ll prov1de a visible and tangible retum snch as reduction of diabetes, childhood obesity, and other preventable maladies; and

\VHEREAS, the border wal! represents a human rights crisis for ind1genous reoples llvmg along the borders and the human rights crisIs at the southern border ofthe Umted States has resnlted mover 4,000 mlgrant deaths m reccnt years, and

WHEREAS, the border wall w111 have devastating consequences on Texas border econolllles, environment, human righls, will result III landowllers and faln1erS losing land and cntleal access to r¡ver water irrigatlOn and, and wil! affeet the relatlonship between the United States and Mexleo, and

WHEREAS, the border wal! WlIl also affeet historieal Sltes along the RlO Grande RlVer that are impOltant to Brownsv¡]le such as: a natlOnal historie mal'kcr ofFort Texas, whlCh IS the site ofthe first battle ofthe Mexican-American Wal', the Palmetto HlII battJe site, which is where the last battle of the civil wal' was fought, the Chísolm Trail hlstoncal site, Wh1Ch lS the ong1l1 ofthe famous cattle dnve to Kansas üty, the Brownsvllle, TexasfMatamol'os, Mexlco ferry crossing h1storical site, wruch has been 111 operatlOn S1l1ce before 1l1terna!1onal bridges were bUilt: and

WHEREAS, the federal govcrnment, through íts power to Walve in their entlrely the Endangered Specles Act, the ~f¡gratory Bird Treaty Act, the Nallonal Environmental Policy Act, the Coastal Zone Managemcnt Act, (he Clean Water Act, the Clean Air Act, and the NatlOnal Histone PreservatlOn Act, the Archeologlcal Resources Protection Act, the Safe Dnnking Water Act, the NOlse Control Act, the Solid Waste Dlsposal Act. Endangered SpeCles Act, the Wild and Scemc Rlvcrs Act, the Fam¡]and Protection Poliey Aet, the Admimstratíve Procedures Act, and the F1Sh and W!ldlife CoordmatlOn Act, would construct a bo.rder wal! that would shce through the heart of the Río Grande wildlife corridor, would clear hundreds of miles o.f nparian habitat affecting mígrat1l1g birds, bals, butterflles, ocelo\s, and other wild ammals, would adversely affect the ecosystems of lhe Santa Ana NatlOnal Wlidhfe Refuge, Bentsen-Rio Grande Valley State Park, and World Birding Center, Roma Bluffs World Birdmg Center, the NABA Intemational Buttel'fly Park, the Sabal Palm Audubon Sanctl1ary, the Nature Conservancy's Soutrunost Preserve, and numerous United States F1Sh and W¡]dhfe tracts thut front the Río Grande: and

Resolution2007-071 (12-07) - Page 1 of2

WHEREAS, the border wall would provide a false sense of security based on the known faet that a wall can be easily breached within mmutes, would not stop illegal border crossmgs, and would be less effective than a smart virtual fence whlch could be achieved through ralsing tbe river leve! to 26 feet aboye sea level. widening the river to 300 lmear feet, vla the conshuction of a weir dam; and

WHEREAS, together with the Texas Border Coalition we snpport altema(lVes to fencing that are smart and effectlve and ultimately achleve (rue secun(y, such as the Vega Project m Webb County, the Eagle Pass Park Project, the Brownsville Weir and Reservon' ProJect. the mwc's reinforcemcnt of levees and tbe clearing of fuo Grandc vegetatIon such as Carnzo calle that provides hidmg places for illegal immlgratlon and other Illegal actlvlty; and

WHEREAS, we support physlcaJ bamers, m remote areas where they make sense, and they are agrecd to by County and MUllIClpal officials and we strongly support smarter, more effectlve solutlOns where rences would be ltleffectIve, thal ltlc1ude radar, cameras, sensors, and more effeetive deploymenl ofBorder Patrol persoJltlel;

WHEREAS, our nation needs lo find real soluhons lo OUT lmmlgration issues instead of conslructmg a \Vall that would prolllbit the creation of a river walk for the revltalization of downtown Brownsville and for the benefit of the cItizens ofboth counlnes; and

WHEREAS, conslructlon of the border wall would adversely affeet the delicate local economy, destroy vItal ecosystems, cost taxpayers bllhons of dollars, and put al nsk hundreds of lives by herdmg people to dangerous desert crossmgs

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSJON OF THE ClTY OF BROWNSVILLE:

Section 1. The Clty ComllJlssion of Ihe Clty of BrownsvIlle, and Brownsv¡]!e resldents, hcreby express strong opposllion to the federal fundmg and eonstruction of the border wall, WhlCh would be imposed upon our intematlOnal border by Ihe U.S, Federal Govenllnenl, as an infrastrueture proJ eet that would not meet the strategy fol' eomprehenswe immlgratlon reform ror the U S., and cause untold damage to human life, wIldhfe, ecosystems, local eeonomy, private prOpeliy, bstoneal property, farmland, and internatlOnal relatlOns between Mexico and thc 0Jl11ed States.

Section 2. The attached petition, signed by local resldents, pubhc and private cnhl1es, hereby reflects their opposilIon of Ihe proposed border wa11, and Ihey join wlth the Texas Border CoahtlOll and the RIO Grande Valley Network of orgamzatlOllS who oppose the border wal! constructlOn.

DONEthls

Attest:

Estela Von Hatten City Secretary

4'h day ofDecember, 2007.

Resolutton2007-071 (12·07) - Page 2 of2

Pat M. Ahumada, ,Tr. Mayor

From: TOI

Ce: sUbje"ct, Date:

Chlel,

Sltuatlonal Awaroness Report:

Engineers have vislted Ihe Seclors (unknown lo any BP elemenls as we dlscussed) and IdenllRed lence locallons. These wlll be brleled al Ihe March 271h SRR. Won'l be Ihere have lo go lo Ihe HIII.

~2~~~~Q;j~~¡y'i~I\'~~W¡¡I,bJ¡¡rJhdJi'P225;F!~1

OBP needs lo Idenllfy \Vhere Ihe Seclors wanl pedeslrlan lence. (worklng It)

. OBP needs lo verify wilh Ihe Seclors Vlhere ornamenlal lencing \Viii be requesled. (Vlorking it)

WHAT WE AlREADY KNOW: IBWC conlrols Ihe property betVIeen Ihe river and Ihe levy. IBWC (Trealy wilh Mexico) says we can'l obslrucl waler RoVl. ISWC says we also can'l build in Rood plaln. II we build in a Rood plaln and Ihen il floods we \Viii be alterlng waler flow. There ls also an Executive Order Ihal sllpulales Ihal no ".,,1, .,a"o

WHAT WE DIDN'T"T

ifll'ty;wnr;¡'íZI'.lf¡i!Il6íW§;'¡¡~r'R0E$'fg'~'¿6(¡~iittlWJ~Wª,'tfI1W)ii~\~}m¡¡W(!(¡'ii'f\la;y~'JHjlfIlfíj~!~bJS sald Ihal Ihey dldn'l Idenllfy all Ihe land owners when we ran Ihal drlll so Vle can'l provlde 1110 Ihem. Tlle problem belng Ir Ihey don'l have ROEs lo enler Ihe property how do Ihey gel on Ihe property lo do Ihe environmenlallnvesligatíons prior lo purchase. They need lo do Ihe envlronmenlal lo make sure Ihey are nol purchasing a loxic wasle dump. Ir Ihey purchase a loxlc wasle dump Ihen Ihe Governmenl has Ihe responslbllily of cleanlng Il up. ACE Legal Ihlnks If Ihey rlde wlth SP 1l will be iIIegal for Ihe purposes 01 dolng envlronmenlallreal eslale Vlork whlch gels Ihem lo Ihe purchase. II Ihe purchase or a property goes lo court Ihey are worrled Ihal our (SP) slalulory aulhorily lo enler privale lands could

be calrtley~~~~7:e"~gJa~9tr¡'~~~oPr;RI,Vln;;~¡PW"1~!~~Íf;G'~e<¡~t90,;ne~·x;'tIp"'lbo,icr··e·;~·I;~Pe'%pJho,·;,es;,·mS'··I·b..lIPI'·I;I·yl%!lI;OWS,rl··I;dJhe;'~AXcFEq~o;l~n·;·l·oRHorCu)·r·l'?s·!lI··;a~-I···UJrl'O·~ry;";;··;·'\;;\" J~~9R~L;.Ja,'t~~"¡),ifh;i;,,,;~~,,;;~ .. ;.~;;,,)~Q;;.,.;,.. , '.". .. . . ' '®!lj))tlly.to.eiller'.pnvale íands lorlhe.purpose 'oroolng'\Ilése'jiludlesr" ; ... ' ,

Froml Tol Subject: Date!

Chlef,

Saturaay, May 05,20078:50:01 PM

Now Ihal 1 have had lime to revlew Ihe e maif slorm concernlng Ihe PF 225 Communicallon Plan ¡ would IIke lo make the followlng known:

Fence laydown:

Chlef,

Thls was nol executed correctly from the start. SBr was glven the TI Blble wlth the warning that It was outdated and anythlng It was used for, OBP should be advlsed so the SMEs could Identlfy Ihe problems wlth uslng It for the deslred purpose. SB¡ 15 cJalming tha! OBP has changed the laydowo three times whlch Is a Ihreat to the dellvery date. This 15 nol the case, we have slmply gone back and taken the crltlcal steps Ihey mlssed.

hlstorlcal U'UCUIII~llIl and fence locations needed lo coordlnatlon wlth the Sectors. lt was to late. ACE had picked and surveyed the locations and because of time constralnts they had Inltlally declioed lo accept anychanges.We pushed backa9cl.SBLagr~eded to allow us lo . verlfy Ihe localions wlth the Sectors. !i9¡¡Wé"$~\\(9ti'jiíq;Qlff~(~~t'9P~f~~rijnªJJiilM(l1Tºrif~Ki;~ Thls was change number one. . •• "......... .. ".-<......... ..... .... . ...... ....,

Somelime Jater S-l was glven three opllons because we dldo't agree wlth thelr laydown. S-l decided we would 90 wlth Ihe original 370 laydown vs Ihe deslred SBlnet plan. Once agaln thls Is where Ihey say OBP changed the laydown agaln.

The cJalm of change three 15 connected lo change MO. I told SBI Ihal Ihe original 370 oplion needed to be presenled to 5-1 wllh Ihe caveal Ihat Ihere would be no fence In lRT. Thls was not done and Ihey are clalmlng Ihal we have ehanged Il three times now.

You may already know thls but I wanted to make sure. There is a lot of hlstorleal dala that has led us to where we are todayand It Is the result of the SMEs not belng IIstened to. 1 just want you to know that ¡ am focused on Ihe road ahead but keeplng the past In mlnd so hlstory doesn't repeat Its self.

Jeff

From: TOl

Subject: Date: Frlday, Augu,t 2~, 2007 10:19:42 m

To: ALL

The attached spreadsheet does not reflect any buffer miles related to P225 for the Del Rlo Sector. Any additional miles that could be ldentified wlthln the AOR would present the same realtyjenglneerlng lssues that are present In our current P225 projects In Del Rlo, Tx and Eagle Pass, Tx.

\llltK~~~'~~¡¡~¡~~~~~~í~~~~~~;~~~o~~~~~~:i~ft~~~~~~~~:i66¡¡~f;éj' government owned or that Include envlronmental assessments completed In relation to fence placement.

Thanks

Reply Separator ""s-cubc':je-c""t:--=Fw-: P::-:F=2=2""S-=-Buffer Miles --------Author:~ Date: ~M

Sent: Thu Aug 23 . SubJect: PF225 Buffer Miles

AII,

bee~/· I built and wlll be

Instltuted at the same time as However, due to the addltlonal time requlred to resolve assoclated Issues wlll be completed sometlme In '09.

review the attached spreadsheet that consis!s of Idel,tlfll,d

fmm all Sectors In arder to capture any addi!ional pro)ects that aren't IIsted on the spreadsheet that 1) has operational value and 2) has IImited Issues and Is consldered "easy bulld" (lf there Is such a thlng). Any newly Identlfled proJec!s must meet the PF225 crlterla as prlmary, aesthetic or hybrid (vehlciejpedestrlan) fence. AII vehlcle barrier-only requlrement pro)ects are to be Incorporated Into the VB200 project at a later date.

Thanks,

Asslstant Chlef

OPA DlvIslon

Offlce of Border Patrol

1300 Pennsylvanla Ave., NW Sulte 6.5E

Washington, D.C. 20229

(b) (6)

LJ11;:': ;:,¡a,emem OI ;:,ecre¡ary ¡VlIcnae¡ '-'nenon Kegaromg J;;XerClSe 01 walver Aumomy rage I 01 j

,a Homeland Securitv .~~ t

This is Archived Material

This inlormation is not current, is not being updated, and may contain broken links.

Statement of Secretary Michael Chertoff Regarding Exercise of Waiver Authority

fe ~SHARE~~. Release Date: April 1, 2008

For Immediate Release Office 01 Press Secretary Contac!: 202-282-8010

Securlng the Border: A Priority lor DHS. In order to secure our homeland, we have to secure our borders. For at least the past decade, iIIegal entry into the United States along our southwestern border has been a significant problem. The Ilow 01 iIIegal traffic through the border region imperils our ability to light terrorism by stopping the iIIegal entry 01 terrorists, and exposes our border communities-and the rest 01 the United States-to the iII effects 01 drug smuggling, human smuggllng, and gang activity. lIIegal border traffic has also caused severe and prolound impacts to the environment.

Congress's Mandate. Mindlul 01 these things, Congress called upon the Department 01 Homeland Security (DHS) to construct-In the most expeditious manner possible-the inlrastructure necessary to deter and prevent iIIegal entry on our southwestern border, including pedestrian and vehicle lencing, roads, and virtual detection technology. Section 102(b) olthe lIIegallmmigration Relorm and Immlgrant Responsibllity Act (IIRIRA) requires installation ollencing, barriers, roads, lighting, cameras, and sensors on not less than 700 miles 01 the southwestern border. This total ineludes 370 miles 01 priority pedestrian lencing to be completed in 2008, in areas most practical and effective in deterring smugglers and aliens attempting to gain iIIegal entry into the United States. Congress has insisted, and 1 have promised, that DHS will meet this goal.

DHS's Successes. In recent years, through the deployment 01 additional personnel, tactical inlrastructure, and technology, DHS and its components have made great strides in effectively securlng the border and reducing the number 01 people that iIIegally enter the United States through this region. We already have constructed 309 miles 01 border lencing along the southwest border.

Congressionally-Granted Waiver Authority: To Ensure Congre55'5 Goal 15 Mel. In addition to its mandate lor additional roads and barriers, Section 102(c) 01 IIRIRA grants to me the authority to waive alllegal requirements that 1, in my sol e discretion, determine necessary to ensure expeditious construction 01 thi5 much-needed border inlrastructure. As envisioned by Congress-and in order to meet DHS'5 congressionally-mandated timeline lor completion-I exercised thls authority today by signing two waivers to ensure the expedllious construction 01 the important border inlrastructure projects that are underway or planned for completion. The waivers cover approximately 470 miles 01 border, on which we plan to construct and install the border barriers specified by Congress in Section 102 of IIRIRA. 1 employed this authority to ensure that these projects will proceed without unnecessary delays caused by administrative processes or potentialliligation. These waivers should cover the remainder 01 additional lence construclion that will be accomplished in 2008.

DHS's Environmental Stewardship Has Been-And WiII Be Continue to Be-Strong. Although the exercise ofmy authority under Section 102(c) 01 IIRIRA mean s that certain laws will be.waived, DHS is neither compromising its commitment to responsible environmental stewardship nor its commitment to solicit and respond to the needs 01 state, local, and tribal governments, other agencies of the federal government, and local resldents.

For example, lor the majority of the miles covered by the waiver, we have prepared either a draft environmental

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un.:>: ':>latemem OI.:>ecre¡ary IVllcnael \...ner¡oII Kegaramg J:\xel'Clse OL walVer AutnOrny I:'age " 01 j

assessment or an environmental impact statement. (For all 01 the miles on which we plan to build pedestrian lencing, we have prepared at least a draft environmental assessment or environmental impact statement.) For a number 01 these miles, it was determined that the proposed border inlrastructure would have only insignilicant impacts on the environment and cultural resources. OHS has also begun the environmental process lor the roughly 22 miles covered by the Hidalgo waiver. We will continue to take the results 01 this work into account­even afler the waivers-in our building and constructlon. For the rest 01 the area, OHS will continue to engage with lederal and state resources management agencies and the local community to carelully identify natural, biological and cultural resources potentially affec!ed by construction of border barriers, and we will identlly ways to reduce and mitigate the impacts. In areas where no such discusslon has already taken place, OHS will consult with appropriate groups and perform environmental work belore signlllcant construction is undertaken.

DHS has already shown that, even afler use 01 my waiver authorlty, we do our best to plan and construct border inlrastructure mindlul of our obligation as stewards 01 the environment. For instance, DHS is currently negotlatlng an agreement with the U.S. Fish and Wildlife SeI"Íice (USFWS) to transler $800,000 to help with mitigation and recovery efforts lor two species-the endangered Sonoran Pronghorn and lesser long-nosed bat-on the Cabeza Prieta National Wildlile Reluge and Barry M. Goldwater Range (BMGR). DHS has taken this acUon even though the Endangered Species Act was waived for construction in the BMGR-a waiver that allowed expeditious construction 01 crucial pedestrian fencing and other inlrastructure. I al so issued a waiver in November 2007 that allowed border lencing to be built in and around the San Pedro National Riparlan Conservation Area (SPRNCA) in southern Arizona. Since I slgned that waiver, OHS has pursued several measures In cooperation with the USFWS to reduce the impact 01 the lencing. Specifically, OHS agreed to relrain lrom installing lence within the San Pedro River basin, unless and until we determined that lack ollencing affected our ability to deter iIIegal entry. OHS also delayed construction in order to excavate and study a culturally significant site at an expense of over $1 million. In addition, DHS agreed to implement a number 01 measures designed to reduce and monitor invasive plant species, erosion, and sediment problems.

DHS will continue to take a similar approach here. As noted aboye, DHS has already invested substantial time and effort consulting with resource agencies and preparing documents to satlsfy the National Environmental Policy Act (N EPA) and other environmentallaws lor the areas covered by this waiver.

It is our goal to implement measures to minimize the effects 01 construction on cultural, blological and natural resources wherever possible. For example, OHS has lunded several excavation sites along the construction raute in order lo allow archaeologisls lo galher informalion aboul pre-hisloric and Nalive American culture. OHS has also parlnered with Ihe USFWS to develop best managemenl practices thal are tailored lor specilic locations and which can be incorporaled inlo conslruction projecls lo minimize the impacls lo wildlife and Iheir habilat. As a resull of Ihese efforts, OHS has an understanding 01 potenlial environmenlal effecls and how to minimize and miligale Ihem. For example, USFWS has provided advice on modilication 01 certain projects lo avoid or reduce effecls on Ihrealened and endangered species. In some cases, OHS was able lo adjust Ihe planned locations of lences, access roads and staging areas lo reduce polential effecls.

II is also imporlant to note that our partners at Ihe Department 01 Interior suggested Ihis waiver in order lo construcl on areas of high entry that are managed by 001 under the Wilderness Acl and the Natlonal Wildlife Reluge System Administration Act. They wrote Ihal "Interior managers have atlempted to facilitale Ihe construction of these lacilities .... We have delermined that we cannol, consistent wilh [our] legal obligations, provide Ihe approvals Ihat would be necessary to allow OHS lo conslruct cerlaln inlrastruclure on Interior lands thal are subjecl lo these laws .... As a result, we see the need for you to invoke a ... waiver 01 Interior slalulory requirements." We will continue to work with 001 and other federal resource management agencies to reduce any impact 01 construction on the environment.

$olicltatlon of Views From The Community. As noted aboye, OHS will also continue to solicit and respond lo the issues and needs of local border communities. As it has planned lor Ihe construction 01 addilional border inlrastructure, OHS has regularly consulted wilh slale and local governmenls, lederalland managemenl and resource agencies such as 001 and USFWS as well as the local residenls Ihemselves. As a parl 01 the NEPA process, OHS actively reached out to the public and stakeholders. OHS has distributed a number of draft NEPA documents lor public comment and review, held numerous public meetings, and cooperated with various resource agencies. The environmental review process, however, is not the only means by which OHS has reached out to state and local stakeholders. As part of ils outreach efforts, OHS contacted almost 600 different landowners and held meeting s with state and local government officials, locallaw enforcement, Native American tribes, and concerned citizens and citizen groups. AII 01 these efforts were locused on providing all interested stakeholders the opportunity to provide input and comments regarding proposed projects in their areas. OHS will continue lo

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lJ.ti.:.: ':'lmemem 01 .:.ecrelary NllCnae¡ c;nenoII Kegaramg .!;,xerClse 01 Walver Authonty l'age J 01:;

engage stakeholders and border communitiesto address the needs 01 the local community.

HidalgoCounty: Worklng With The Local Community. On February 8, 2008, I announced that DHS Is committed to working with local officials In Hidalgo County, Texas-speclllcally, Hidalgo County Dralnage DIstrlct No. 01-to combine DHS's plans to construct border Inlrastructure with Hldalgo's proJect to address Its flood control concerns by raislng its levees. I noted that the proposed levee/barrler project 15 a prime example 01 how, through parlnershlp, communicatlon and cooperatlon, the lederal government and local officials can accomplish two crltlcal goals: securlng Amerlca's borders and protectlng people and thelr property Irom Iloods. It also demonstrates the value 01 collaboratlon between DHS and local governments.

Despite the crltical importan ce 01 constructlng lence at the border and the need to do so quickly, DHS lislened and responded to issues ralsed by state, local, and tribal governments, local resldents, and others, Includlng lederalland management and resources agencies, such as the Deparlment 01 Interior and Unlted States Fish and Wildlile Servlce, in developing plans lor construction 01 barrlers, roads, and virtual detecUon lechnology. The joint levee/barrler projecl with Hidalgo is Ihe product 01 these eflorls. As I sald belore, I commend Hidalgo lor both alerting DHS lo Ihe lact that DHS's conslructlon could potentlally overlap wlth Ihe Counly's flood control eflorts, and oflering a sensible solution whlch provldes the opportunlty lor DHS and Hidalgo to work logether lo Incorporale the conslructlon 01 a concrete border barrler Inlo lis plans to ralse the levees.

Thls project will allow DHS to move closer lo the congresslonal mandate 01 operatlonal control 01 the border, and at the same time provide the people 01 Hidalgo County wlth Increased security Irom drug smugglers, human smugglers, and gangs-all 01 which bring added rlsk 01 border vlolence-as well as protectlon agalnst the very real threal 01 Rlo Grande floods. 01 course, DHS and Hidalgo have not been alone in working lo make thls project a reallly. The Inlernational Boundary and Water Commisslon (lBWC) has be en an Importa ni partner In Ihls eflort, and USFWS Is continuing lo work with DHS to address potentlal envlronmentallmpacts.

We are working with Hidalgo to Ilnallze the mosl appropriale vehlcle lor thls eflorl. The department's authority lo enter into such vehicles is lound in § 102(b)(2) 01 the Homeland Securily Act 012002, P.L. 107-296. Through thls antlcipated arrangement, DHS will transler lunding, plans, and other resources, to allow Hidalgo to Implement the projecl lo me el Its flood mltlgatlon needs, while also satlslying DHS's requiremenls-and the mandales 01 the IIRIRA-to conslruct border Inlraslructure in an area 01 high iIIegal enlry. DHS antlcipates 11 wlll be substantially involved with Hidalgo and IBWC In accompllshing the actlvity thal we expect lo be approved in the agreement.

In addilion lo Ihe walver descrlbed earller, I have also exerclsed Ihls slalulory aulhorlty lo dlspose 01 the legal Impediments Ihal Ihrealen lo impede or Inlerfere wllh the expeditious conslructlon 01 the Jolnl levee/barrler projecl wllh Hidalgo. Even Ihough I have execuled Ihis waiver, DHS Is committed lo carrylng oul thls project in a way that prolects the border, is environmentally responsible, and is protective 01 public lunds. Indeed, a major impetus lor the jolnt levee/barrier project is the cosl savings that can be realized by constructing the border barrler wilh Ihe levee improvements.

The 2008 Appropriatlons Acl provides thal "none 01 the lunds under thls heading may be obligated lor any project or actlvlty lor whlch the Secretary has exerclsed waiver aulhorlty pursuant lo section 102(c) [01 IIRIRA] until 15 days have elapsed Irom the date 01 the publication 01 the decislon In the Federal Reglster." DHS will not expend any restricted lunds until that time perlad has elapsed.

By utlllzing my stalutory waiver authorlty, I have ensured that DHS can meel lis mandate 01 securlng and maintainlng operatlonal control 01 Ihe border in the mosl expeditlous manner possible, and that DHS and Hidalgo Counly can move lorward with a project thal addresses the needs 01 both parlies. DHS remalns commltted to protectlng Ihe Natlon and delerring lIIegal entry and other crimes through control 01 Ihe border, while actlng lo protect the envlronmenl, spend publlc lundswlsely, and work closely with state and local stakeholders lo understand and respond lo Ihe needs 01 border communitles.

This page was last revlewed/modllled on April 1, 2008.

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H. R. 6061

(8ne lliundred Rínth [ongress of the

tlníted ~tates of 2lmcríca AT THE SECOND SESSION

Begull Cllld hcld al lhe City of Washington 01l Tuesda-y, tire third day of January, two tllOllSallll aud si.~

2ln 2lct To establish operational control over the internationalland and maritime borders

ofthe United States.

Be it enacted by the Senate and House of Representatives of the United States of Amel'ica in Gongress assembled,

SEC'l'ION 1. SHORT TITLE. This Act may be cited as the "Se cure Fence Act of 2006".

SECo 2. ACHIEVING OPERATIONAL CONTROL ON THE BORDER. (a) IN GENERAL.-Not later than 18 months after the date

of the enactment of this Act, the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appro­priate to achieve and maintain operational control over the entire international land and maritime borders of the United States, to include the following-

(1) systematic surveillance of the international land and mari time borders of the United States through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras; and

(2) physical infrastructure enhancements to prevent unlaw­fui entry by aliens into the United States and facilitate access to the internationalland and maritime borders by United States Customs and Border Protection, such as additional checkpoints, all weather access roads, and vehicle barriers. (b) OPERATIONAL CONTROL DEFINED.-In this section, the term

"operational control" means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlaw­fui aliens, instruments of terrorism, narcotics, and other contra­bando

(c) REPORT.-Not later than one year after the date of the enactment of this Act and annually thereafter, the Secretary shall submit to Congress a report on the progress made toward achieving and maintaining operational control over the entire international land and maritime borders of the United States in accordance with this section.

SECo 3. CONSTRUCTION OF FENCING AND SECURITY IMPROVEI\1ENTS IN BORDER AREA FROI\1 PACIFIC OCEAN TO GULF OF MEXICO.

Section 102(b) ofthe Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 8 U.S.C. 1103 note) is amended-

H. R. 6061-2

(1) in the subsection heading by striking "NEAR SAN DIEGo, CALIFORNIA"; and

(2) by amending pal'agraph (1) to l'ead as follows: "(1) SECURITY FEATURES.-

"(A) REINFORCED FENCING.-In carrying out subsection (a), the Secretary of Homeland Security shall provide for least 2 layers of reinforced fencing, the installation of addi­tional physical barriers, l'oads, lighting, cameras, and sen­sors-

"(i) extending from 10 miles west of the Tecate, California, port of entry to 10 miles east of the Tecate, California, port of entry;

"(ii) extending from 10 miles west of the Calexico, California, port of entry to 5 miles east of the Douglas, Arizona, port of entry;

"(iii) extending from 5 miles west of the Columbus, New Mexico, port of entry to 10 miles east of El Paso, Texas;

"(iv) extending from 5 miles northwest of the Del Rio, Texas, port of entry to 5 miles southeast of the Eagle Pass, Texas, port of entry; and

"(v) extending 15 miles nOl'thwest of the Laredo, Texas, pOl't of entry to the Brownsville, Texas, port ofentry. "(B) PRIORITY AREAS.-With respect to the border

described-"(i) in subparagraph (A)(ii), the Secl'etary shall

ensure that an interlocking surveillance camera system is installed along such area by May 30, 2007, and that fence constl'uction is completed by May 30, 2008; and

"(ii) in subparagraph (A)(v), the Secretary shall ensure that fence construction from 15 miles northwest of the Laredo, Texas, port of entry to 15 southeast of the Laredo, Texas, port of entry is completed by December 31, 2008. "(C) EXCEPTION.-If the topography of a specific area

has an elevation grade that exceeds 10 percent, the Sec­retary may use other means to secure such area, including the use of surveillance and barrier tools.".

SECo 4. NOR'I'HERN BORDER S'I'UDY.

(a) IN GENERAL.-The Secretary of Homeland Security shall conduct a study on the feasibility of a state of-the-art infrastructure security system along the northern internationalland and maritime bordel' of the United States and shall include in the study-

(1) the necessity ofimplementing such a system; (2) the feasibility of implementing such a system; and (3) the economic impact implementing such a system will

have along the northern border. (h) REPoRT.-Not later than one year after the date of the

enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that contains the results of the study conducted under suhsection (a).

H.R.6061-3

SECo 5. EV ALUATION AND REPORT RELATING TO CUSTOMS AUTHORITY TO STOP CERTAIN FLEEING VEHICLES.

(a) EVALUATION.-Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall-

(1) evaluate the authority of personnel of United States Customs and Border Protection to stop vehicles that entel' the United States illegally and refuse to stop when ol'dered to do so by such pel'sonnel, compare such Customs authority with the authority of the Coast Guard to stop vessels under section 637 of title 14, United States Code, and make an assess­ment as to whether such Customs authority should be expanded; .

(2) review the equipment and technology available to United States Customs and Border Protection personnel to stop vehicles described in paragraph (1) and make an assess­ment as to whether or not better equipment or technology is available or should be developed; and

(3) evaluate the training provided to United States Customs and Border Protection personnel to stop vehicles described in paragl'aph (1). (b) REPORT.-Not later than 60 days after the date of the

enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Alfairs of the Senate a report that contains the l'esults ofthe evaluation conducted undel' subsection (a).

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.

H.R.2764

Consolidated Appropriations Act, 2008 (Enrolled as Agreed to or Passed by Both House and Senate)

BORDER SECURITY FENCING, INFRASTRUCTURE, AND TECHNOLOGY

For expenses fol' customs and border protection fencing, infrastructure, and technology, $1,225,000,000, to remain available until expended: Provided, That ofthe amount provided under this heading, $1,053,000,000 is designated as described in section 5 (in the matter preceding division A of this consolidated Act): Providedfurther, That ofthe amount provided under this heading, $650,000,000 shall not be obligated until the Committees on Appropriations of the Senate and the House of Representatives receive and approve a plan for expenditure, prepared by the Secretary ofHomeland Security and submitted within 90 days after the date of enactment ofthis Act, for a program to establish a security barrier along the borders of the United States offencing and vehicle barriers, where practicable, and other fOlIDS of tactical infrastructure and technology, that includes:

(1) a detailed accounting of the program's progress to date relative to system capabilities 01' services, system performance levels, mission benefits and outcomes, milestones, cost targets, program management capabilities, identification of the maximum investment (including lifecycle costs) required by the Secure Border Initiative network 01' any successor contract, and description ofthe methodology used to obtain these cost figures; (2) a description ofhow activities will fmlher the objectives ofthe Secure Border lnitiative, as defined in the Secure Border Initiative multi-year strategic plan, and how the plan allocates funding to the highest priority border security needs; (3) an explicit plan of action defining how all funds are to be obligated to meet future program commitments, with the planned expenditure of funds linked to the milestone-based delivery of specific capabilities, services, performance levels, mission benefits and outcomes, and program management capabilities; (4) an identification of staffing (including full-time equivalents, contractors, and detailees) requirements by activity; (5) a description of how the plan addresses security needs at the N Ollhern Border and the ports of entry, including infrastructure, technology, design and operations requirements; (6) a repOll on costs incurred, the activities completed, and the progress made by the program in terms of obtaining operational control ofthe entire border of the United States; (7) a listing of all open Govermnent Accountability Office and Office of Inspector General recommendations related to the program and the status

of Department of Homeland Security actions to address the recornmendations, including milestones to fully address them; (8) a certification by the ChiefProcurement Officer ofthe Depat1ment that the program has been reviewed and approved in accordance with the investment management process of the Depat1ment, and that the process fulfills all capital planning and investment control requirements and reviews established by the Office of Management and Budget, including Circular A-l!, pat17; (9) a certification by the ChiefInformation Officer of the Department that the system architecture of the program is sufficiently aligned with the information systems enterprise architecture of the Department to minimize future rework, including a description of all aspects of the architectures that were and were not assessed in making the aligmnent determination, the date of the aligmnent determination, and any known areas of misaligmnent along with the associated risks and corrective actions to address any such areas; (10) a ce11ification by the ChiefProcurement Officer ofthe Department that the plans for the program comply with the Federal acquisition rules, requirements, guidelines, and practices, and a description of the actions being taken to address areas of non-compliance, the risks associated with them along with any plans for addressing these risks, and the status of their implementation; (11) a certification by the Chief Information Officer of the Department that the program has a risk management process that regularly and proactively identifies, evaluates, mitigates, and monitors risks throughout the system life cycle and communicates high-risk conditions to U.S. Customs and Border Protection and Department ofHomeland Security investment decision makers, as well as a listing of all the program's high risks and the status of effolis to address them; (12) a celiification by the ChiefHuman Capital Officer ofthe Department that the human capital needs of the program are being strategically and proactively managed, and that current human capital capabilities are sufficient to execute the plans discussed in the report; (13) an analysis by the Secretary for each segment, defined as no more than 15 miles, of fencing or tactical infrastructure, of the selected approach compared to other, alternative means of achieving operational control; such analysis should include cost, level of operational control, possible unintended effects on cornmunities, and other factors critical to the decision making process; (14) a certification by the Chief Procurement Officer of the Department of Homeland Security that procedures to prevent conflicts of interest between the prime integrator and major subcontractors are established and that the Secure Border Initiative Program Office has adequate staff and resources to effectively manage the Secure Border Initiative program, Secure Border Initiative network contract, and any related contracts, including the exercise of technical oversight, and a certification by the Chief

Information Officer of the Department of Home1and Security that an independent verification and va1idation agent is currentIy under contract for the projects funded under this heading; and (15) is reviewed by the Government Accountability Office:

Provided jilrfher, That the Secretary shall report to the Committees on Appropriations ofthe Senate and the House ofRepresentatives on program progress to date and specific objectives to be achieved through the award of current and remaining task orders p1anned for the balance of avai1ab1e appropriations: (1) at 1east 30 days prior to the award of any task order requiring an obligation offunds in excess of$100,000,000; and (2) prior to the award of a task order that wou1d cause cumu1ative obligations of funds to exceed 50 percent ofthe total amount appropriated: Providedjilrfhel, That ofthe funds provided under this heading, not more than $2,000,000 shall be used to reimburse the Defense Acquisition University for the costs of conducting a review ofthe Secure Border lnitiative network contract and determining how and whether the Department is emp10ying the best procurement practices: ProvidedJurfhel', That none of the funds under this heading may be obligated for any project 01' activity for which the Secretary has exercised waiver authority pursuant to section 1 02( c) ofthe Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.e. 1103 note) until15 days have elapsed from the date ofthe publication of the decision in the Federal Register.

SEe. 564. IMPROVEMENT OF BARRIERS AT BORDER. (a) Section 102 of the Illega1 Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 11 03 note) is amended--

(1) in subsection (a), by striking 'Attorney General, in consultation with the Commissioner of Immigration and Naturalization,' and inserting 'Secretary of Homeland Security'; and (2) in subsection (b )--

(A) in the subsection heading, by striking 'in the Border Area' and insCliing 'A10ng the Border'; (B) in paragraph (1 )--

(i) in the heading, by striking 'SECURITY FEA TURES' and inseliing 'ADDITIONAL FENCING ALONG SOUTHWEST BORDER'; and (H) by striking subparagraphs (A) through (C) and inserting the following:

'(A) REINFORCED FENCING- In carrying out subsection (a), the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles ofthe southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control ofthe southwest border. '(B) PRIORITY AREAS- In carrying out this section, the Secretary ofHomeland Security shall--

'(i) identify the 370 miles, or other mileage determined by the Secretary, whose authority to detelmine other mileage shall expire on December 31, 2008, along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States; and '(ii) not later than December 31, 2008, complete construction of reinforced fencing along the miles identified under clause (i).

'(C) CONSULTATION-'(i) IN GENERAL- In canying out this section, the Secretary of Homeland Security shall consult with the Secretary ofthe.Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed. '(ii) SAVINGS PROVISION- Nothing in this subparagraph may be construed to--

'(1) create 01' negate any right of action for a State, local government, or other person or entity affected by this subsection; 01'

'(JI) affect the eminent domain laws of the United States 01' of any State.

'(D) LIMITATION ON REQUIREMENTS- Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary ofHomeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border ofthe United States, ifthe Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.'; and (C) in paragraph (4), by striking 'to carry out this subsection not to exceed $12,000,000' and inserting 'such sums as may be necessaly to carry out this subsection'.

(b) No funds appropriated in this Act for U.S. Customs and Border Protection 'Border Security Fencing, Infrastructure, and Technology' may be obligated unless the Secretmy of Homeland Security has complied with section 102(b)(2)(C)(i) ofthe Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) as amended by subsection (a)(2).

Violations on tlle Part of tlle United Sta tes Government of tlle Right to Property and Non-Discrimination Held by Residents oftlle Texas Rio Grande Valley

Tlle Working Group on Human Rights and tlle Border Wall

Leall Nedderman, Ariel Dulitzky and Denise GHman

2008

Introduction

The Secure Border Fence Act of2006 and the Consolidated Appropriations Act of2008 direct the construction of 700 miles of reinforced fencing on the Southwest border of the United States. Appl'Oximately 70 miles of this fencing is slated to be constructed in the Texas Rio Grande Valley.

The lands being taken by the U.S. government for the purpose of building the fence include public and privately held lands l. Several private propeliies that are cUl'1'ently being accessed by the U.S. government for the purpose of surveying and construction are owned by citizens with deep historical c1aims to their land. Dr. Eloisa Tamez, alife-long resident of El Calaboz, Texas is one such pl'Operty owner. Dr. Tamez, self identified as Lipan Apache, is the owner of a small piece of pl'Operty that has been in her family since 1774. The proposed wall will bisect her land, leaving the majority ofher property on the south side ofthe ball'ier. 2

The case of Idalia Benavidez and her family is another example. F 01' five generations, the Benavidez family has lived on a seven-acre plot of farmland near the U.S.-Mexico border west of Bl'Ownsville, Texas. They have harvested cotton and squash and raised goats and pigs. They have helped build the levee that is located acl'OSS the real' ofthe property. In April, federal officials all'ived asking to purchase a rectangular si ice oftheir property abutting the leve e for $4,100 to make way for the border fence. The Benavidez family refused. Idalia Benavidez told the Working Gl'OUp that one of the government employees told her, "1 don't want to scare you but whether you agree 01' not, the govemment's going to build the fence." Ifthe 18-foot-high barrier is built on their property, it will cut off the Benavidez cows and goats from apasture south of the fence's pl'Oposed path3

. Many other private propeliy owners are being affected in similar ways.

In the pl'Ocess of planning and constructing the border fence on the TexaslMexÍ<::o border, and particularly in the Rio Grande Valley, the United States govemment is violating residents' right to pl'Opeliy. Additionally, the Depatiment ofHomeland Security (DHS), and Customs and Border Protection in patiicular, are conducting the border fence planning and construction pro ces s in ways that violate the principies of equal protection and non-discrimination as understood by intemational human rights law.

I The public lands are propel1y ofthe State ofTexas, different cities, counties and school districts, among others. 2 The Working Group has interviewed and consulted with DI'. Eloisa Tamez. 3The Working Group interviewed Idalia Benavidez. See also Arian Campo-Flores and Andrew MUIT, Brownsville's Bad Líe, Newsweek, May 05, 2008.

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This briefing papel' examines these violations. Its central arguments are: • The United States government is violating residents' right to property. 4

• The placement (location) ofthe border fence is discriminatory. • The placement (location) ofthe border fence is arbitrary. • The burden is on the United States government to demonstrate that the

construction of a border fence is a reasonable and necessmy measure to protect the State's national security objectives and that there are no other less restrictive measures available, but the government has not carried its burden.

Domestic Law on the Border Fence

Two pieces oflegislation are central to U.S. policy concerning the border fence:

• P.L.109-367, the Secure Fence Act of2006 • P.L.110-161, the Consolidated Appropriations Act of2008

P.L. 109-367, the Secure Fence Act of2006, was signed into law on October 26,2006. The act directed DHS to construct two-Iayered reinforced fencing and additional physical barriers, roads, cameras, sensors, and lighting along five stretches ofthe southwest border.

According to the act, the Texas portion of the border fence would be located: from 5 miles west ofthe Columbus, New Mexico, port of enüy to 10 miles east of El Paso, Texas; from 5 miles northwest of the Del Rio, Texas, port of entry to 5 miles southeast of the Eagle Pass, Texas, por! of entry; and from 15 miles northwest ofthe Laredo, Texas, port of entry to the Brownsville, Texas, port of enÜ"y.

P.L. 110-161, the Consolidated Appropriations Act of 2008, was enacted on December 26,2007 (fourteen months afier the Secure Fence Act of2006). Most importantly, the act significantly increased the Secretary ofHomeland Security's discretion as to where to construct fencing. Whereas the Secretary was previously required to build the fence in specific areas, the new legislation includes a more general requirement to construct barriers: "along not less than 700 miles ofthe southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border5

." The act also amends the provisions concerning fence construction in priority areas, by requiring the Secretmy ofHomeland Security to identify either 370 miles or "other mileage" along the southwest border where fencing would be most practical and effective, and to complete construction of fencing in those identified areas by December 31, 2008. Another important change enacted by this legislation is that the Secretmy is

4 Current U.S. immigration law authorizes the Secretaty ofDHS to contract for and buy any interest in land adjacent to or in the vicinity ofthe intemational border when the Secretary deems the land essential to control and guard the border against any violations ofimmigration law. It also authorizes the SecretaIy to commence condemnation proceedings if a reasonable purchase price cannot be agreed upon. See IIlegal Immigration Reform and Immigrant Responsibility Act, section 102. 5 P.L. llO-161.

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not required to install: "fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location .. .if the Secretaty determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location." Despite the impOltant modifications and new requirements for consultation and consideration of alternatives included in this legislation, DHS do es not appear to have changed its plans for walllocations signiticantly from those designated in the Secure Fence Act of2006.

International Law as it Applies to the Border Fence - The Right to Property and the Principie ofEqual Protection and Non-Discrimination

Article II ofthe American Declaration on the Rights and Duties ofthe Man ("American Declaration") says that: "AH persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor."

Article V of the American Declaration states: "Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life."

Article IX of the American Declaration states: "Every pel'son has the right to the inviolability ofhis home."

Alticle XXIII of the American Declaration states: "Every person has a right to own sueh private propelty as meets the essential needs of decent living and helps to maintain the dignity ofthe individual and ofthe home."

The Inter-American Court ofHuman Rights ("the Inter-American COutt" or IACtHR) has said that the right to propelty must be understood in the eontext of a demoeratic society. In that context, the State, in order to guarantee other rights of vital relevance can limit or restriet or even expropriate since the right to private property is notan absolute right6

.

However, the Inter-American system has put strict limitations on a State's ability to affeet a person's right to propelty.

The Inter-American Court has held, on several occasions, that, in aceordance with Artiele 21 ofthe American Convention on Human Rights ("American Convention,,)7, a State may restrict the use and enjoyment of the right to property only where the restrictions on

6 See IACtHR, Case ofSalvador-Chiriboga v. Ecuador. Preliminaty Objections and Merits. Judgment of May 6, 2008 (Only in Spanish). Series C No. 179, para. 60. 7 The Inter-American Commission on Human rights ("the Commission" or IACHR) has clarified that, in interpreting and applying the Declaration, it is necessary to consider its provisions in the context of the international and inter-American human rights systems more broadly and in the light of developments in the field of international human rights law. This includes, in particular, the American Convention on Human Rights which, in many instances, may be considered to represent an authoritative expression of the fundamental principIes set forth in the American Declaration. IACHR, Garza v. United States, Case 12.275, Annual Report ofthe IACHR 2000, paras. 88 and 89.

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the right are: a) previously established by law; b) necessmy; c) propOltional, and d) with the aim of achieving a legitimate objective in a democratic society. 8

The Inter-American Comt has recognized its power to review the public utility 01' social interests invoked to restrict the right of property or to expropriate propelty. According to the Court, States must use the least restrictive means when the rights and duties contained in the Convention are affected9

•

The tribunal has explained that when restricting rights, including the right to propelty, States must ensure that the measures are necessary, in the sense that they are absolutely essential to achieve the purpose sought and that, among aIl possible measures, there is no less burdensome one in relation to the right involved, that would be as suitable to achieve the proposed objective 10. The COUlt requires that the restriction must be proportionate to the interest that justifies it and must be appropriate for accomplishing this legitimate purpose, interfering as little as possible with the effective exercise of the right 11. Particularly, if various options are available to achieve an objective, the one which least restricts the right protected must be selected 12.

The Inter-American Comt has further held that the requirement of proportionality in a democratic society must be respected not only in the law that frames the restrictions but al so by the administrative and judicial authorities in the application of the law. States should ensure that reasons for the application of restrictive measures are provided 13.

In addition, in accordance with case law from the Inter-American system, "there is an inseparable connection between the obligation to respect and guarantee human rights and the principIe of equality and non-discrimination. States are obliged to respect and guarantee the fuIl and free exercise ofrights and freedoms without any discrimination.,,14 Restrictions and limitations on the right to propelty must also respect the principIe of equality and non-discrimination.

8 See IACtHR, Case ofthe Saramaka People. v. Suriname. Preliminary Objection, Merits, Reparations, and Costs. Judgment ofNovember 28, 2007 Series C No. 172; para 127; Case ofthe Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17,2005. Series C No. 125, paras. 144-145 and Case ofthe Sawhoyamaxa Indigenous Commllnity v. Paraguay. Merits, Reparations and Costs. Judgment ofMarch 29, 2006. Series C No. 146, para. 137. 9 See IACtHR, Case ofSalvador-Chiriboga, supra note 6, para. 73. 10 See IACtHR, Case of Chaparro Álvarez y Lapo ÍlIigllez. v. Ecuador. Preliminary Objection, Merits, Reparations and Costs. Judgment ofNovember 21,2007. Series C No. 170, para. 93. II Se e, e.g., IACtHR, Case of Claude-Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of September 19,2006. Series C No. 151, para. 9l. 12 See IACtHR, Case ofYatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 23, 2005. Series C No. 127, para. 206. 13 See IACtHR, Case ofRicardo Canese v. Paraguay. Merits, Reparations and Costs. Judgment of AUgllst 31,2004. Series C No. 111, para. 132, citing the U.N. Human Rights Committee, General Comment No. 27 ofNovember 2, 1999, para. 15. 14 See 1ACtHR, AdvisOlY Opinion OC-18/03 of September 17, 2003, Requested by the United Mexican States; Juridical Condition and Rights of the Undocumented Migrants, para. 85.

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The principIe of equal and effective protection ofthe law and of non-discrimination is ensln'ined in multiple international instruments. 15 As stated by the Inter-American eourt: "the fact that the principIe of equality and non-discrimination is regulated in so many international instlUments is evidence that there is a universal obligation to respect and guarantee the human rights arising from that general basic principle.,,16 As stated by the Inter-American eommission on Human Rights, thejus cogens nature ofnon­discrimination implies that, owing to its preemptOly nature, al! States must observe this fundamentallUle, whether 01' not they have ratified the conventions establishing the principIe of equality and non-discrimination.

Internationallaw al!ows States to make reasonable distinctions between groups 01'

individuals in order to pursue legitimate aims in the interest of the State 01' society­including national security objectives such as border security. However to be permissible, the distinctions must fal! within narrow parameters.

With regards to the possibility ofthe State to make distinctions between individuals and groups, the Inter-American eourt has found that "the term distinction will be used to indicate what is admissible, because it is reasonable, propOltionate and objective.,,17 The term "discrimination" will be used to refer to any exclusion, restriction 01' privilege that is not objective and reasonable, and which adversely affects human rights. 18

The principIe of proportionality is thus included as a requirement to establish the validity of restrictions on the right to property as wel! as to decide whether a measure is discriminatory. In regards to proportionality in the discrimination context, the Inter­American human rights organs apply a standard very similar to the one applied in assessing restrictions on the right to propelty and other rights in general. The Inter­American eommission has established that, if various options are available to achieve an objective, the one that least restricts the right protected must be selected. 19 Similarly, in order to justifY permissible distinctions, the State must demonstrate that its objectives cannot be satisfied any other way than tln'ough discriminatory means. 20

Internationallaw provides additional guidance for considering the human rights implications of the constlUction of the fence and its effect on the property rights of border residents. The International eourt of Justice (leJ) considered issues relevant to the Texas/Mexico border-wal! when it ruled on the construction of á wall by Israel in the occupied Palestinian tenitory21. In this case, although the Israeli government had broad

15 As noted by the Inter-American Court, some of these instruments inelude: OAS Charter, Artiele 3( 1); American Deelaration on the Rights and Duties of Man, Article 2; American Convention on Human Rights, Artieles 1 and 24; Charter ofthe United Nations, Artiele 1(3). 16 See IACtHR, Advisory Opinion OC-18/03, supra note 14, para. 86. 17 ¡bid. para 84. 18 ¡bid. 19 As stated by the Inter-American Commission in its submission in the proceedings on Advisory Opinion OC-18/03, supra note 14, para. 47. 20 ¡bid. 2ilCJ Legal Conseqllences oftlie Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004.

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authority to confiscate land, villages complained that they had been unfairly deprived of their land through such seizures. The leJ ruled that the wall and the route chosen for the wall and its associated security regime "gravely infringe a number ofrights of Palestinians residing in the territory" and "the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public Ol'der.,,22 The leJ decision is crucial in the sense that it held that grave property violation cannot stand even in the face of militaty justifications or national security goals and their connection to the construction ofthe wall. In order to reach its conclusion, the leJ took into account the provisions of the International eovenant on eivil and Political Rights (IeePR), to which the U.S. is a party, among other instruments23 . erucially, the IeJ observed that, in regard to the restrictions provided for under Article 12, paragraph 3 of the l eePR relating to the right offreedom of movement, it is not sufficient that such restrictions be directed to the ends authorized; they must also be necessary for the attainment ofthose ends, confOl'm to the principie ofproportionality and be the least intrusive instrument amongst those which might achieve the desired result. The leJ concluded that these conditions were not met in regards to the wall constructed in the occupied Palestinian territories24 .

This briefing papel' will demonstrate that although the U.S. government has the right to subordinate the use of private propelty fOl' reasons of public utility and social interest­including national security and the control of irnmigration-, it has not done so in a way that compOlts with international human rights law. By planning for the construction of a border wall across land owned by persons living along the Texas/Mexico border, the U.S. government is violating the right to property and the right to non-discrimination. The restrictions on the right to property imposed in this case are not proportional to the State's objectives; those restrictions defy the principie ofnecessity because they are arbitrary, discriminatOly, and disproportional given that other less restrictive measures are available. Each of these points is explOl'ed below.

ArbitralY Distinctions with Regard to the Location of the Fence

The United States has made arbitrary distinctions with regard to the location ofthe border fenee. It has done so in two ways:

• Legislation that mandates the fence has made arbitrary distinctions with regard to fence location and length and;

• DHS has executed the planning and construction ofthe fence using methods that make arbitrary distinctions between properties.

The Legis1ation Makes Arbitrary Distinctions

eongress has determined that the border fence will consist of intelmittent barriers along the Texas/Mexico border. The use of intermittent fencing raises serious questions not

22 ¡bid, para. 137. 23 ¡bid, para. 136. 24 ¡bid, para. 136.

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only about the effectiveness ofthe proposed baniers, but also about the arbitrary nature oftheir placement.

The differences between the Secure Fence Act of 2006 and the Consolidated Appropriations Act of 2008 suggest that the decision-making process leading to the planned locations for construction of the border fence has been arbitrary and non­objective. The Secure Fence Act of 2006 placed requirements on DHS as to the segments of the Texas/Mexico border that should be fenced, although it left many gaps along the border and did not specifY the exact location of the fence along those segments25 . Current legislation, as passed in the Consolidated Appropriations Act of 2008, removed these requirements and gave DHS complete freedom in detennining the location of the intetTllittent fencing barriers. While the newer legislation allowed for more flexibility in detennining wall construction sites and required greater consultation and consideration of alternatives, DHS has forged forward with plans to construct physical fencing, rather than implement alternatives such as heightened Border Patrol presence or increased technology in most of the areas designated in the original Secure F ence Act.

These changes in the legislation reflect the arbitrary nature ofthe decision-making process that will determine the fate ofhundreds ofproperty owners in South Texas. First, the lack of specificity with regards to fence location in the Consolidated Appropriations Act of 2008 raises serious questions as to the rationale behind the locations specified in the Secure Fence Act of2006. Second, the differences between the two laws also cal! into question the rationale behind the current fencing locations adopted by DHS, which appear to closely follow those dictated in the Se cure Fence Act despite Congress' decision not to mandate fencing in those specific are as. Third, the changes between the first and second bilis undennine the legitimacy of the border fence project by demonstrating the arbitrary nature of the Congressional decision-making process itself26.

The Secure Fence Act of 2006 does not indicate why or how the locations specified in the legislation were chosen. Sufficient information and data do not exist to justifY the building of the border fence in these areas or establish the logical basis for its location. Legislative records from 2006, the year in which the border fence was debated in both the U.S. House ofRepresentatives and the Senate, demonstrate the arbitrmy nature of the location of the border fence.

25 For example, lhe Seeure Fenee Ael of2006, while requiring lhe eonstruetion of a fenee "exlending 15 miles northwesl ofthe Laredo, Texas, pOlt of entry to lhe Brownsville, Texas, pOlt ofentry", did nol specify \Vhelher lhal segmenl should be buill following lhe river bank or in a differenl loealion or ho\V clase lhe fence should be lo lhe river bank. 26 Cunenl legislalion appears also to reduce lhe number of miles of the fenee by approximately 150 miles. This ca!culation is based on U.S. Cusloms and Border Patrol's estimate lhallhe fenee mandated in lhe Seeure Fenee Aet of2006 \Vould require 850 miles ofphysical bmTiers. The Consolidaled Appropriations Aet of2008 only requires lhe construetion of reinforeed feneing along nol less than 700 miles of lhe soulhwest border. Souree: Congressional Researeh Service, Report for Congress: Barriers along lhe U.S. Tntemational Border." Updated January 8, 2008, page 2. Other sourees suggesl lhal lhe Seeure Fence Ael \Vould only have required 700 miles of feneing. It is simply impossible to tell, without expert mapping, \Vhieh estimale is eoneet sinee lhe Seeure Fenee Aet did nol give a lolal mileage number or even the mileage ineluded in eaeh of the segments of lhe border it identified for plaeement of the wal!.

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Statements made by Representative Chris Van Hollen during debates in the U.S. House of Representatives demonstrate Congress' lack of: 1) knowledge about the rationale behind the location ofthe fence, and 2) technical expertise to make location decisions. His statement suggests that Congress does not know why certain precise locations were targeted, and not others: 27

I want to make my position on this issue clear. I support the construction of a fence to better se cure our border ... However, this bill simply doesn't provide for a fence. In a typical example of congressional ovel'1'eaching and micromanagement, the bill specifies exactly how such a fence will be built and the precise location ofeach segment ofthe fence. We are neither engineers nor construction managers nor do we know the best aligmnent of such a fence. We should simply direct the experts to construct a fence that accomplishes the objective of preventing illegal immigration and allow it to be built in the most cost-effective manner.

Representative Bryan Conoway presented a similar argument to his colleagues in the House, demonstrating that Congress was unqualified to make decisions about the location ofthe border fence: 28

Thefirst step is to thoroughly analyze what is needed along all of our borders to meet our goal. At a minimum, the Border Patrol should be asked to provide us with what they think in their professional judgment is needed to do their jobo

The bill set the amount of fencing for the southetn border at 700 miles without properly consulting the Border Patrol, who knows best where a fence is needed. A proper analysis ofthe problem may show that we actually need 1,000 miles 01' it may show us that only 500 miles is needed to secure the border.

The bill designates specifically where the fencing is to be built in Texas. The communities where the fence is mandated to be constructed should have sorne input into this bill before the law was passed. AIso, most of the border between Texas and Mexico is private property. We should have known what impact that will have on the cost of constructing the fence as well as how much ofthe property might have to be taken via eminent domain proceedings.

Senator John Kel1y made similar arguments to the Senate:29

27 Statement by Representative Chris Van Hollen, Library of Congress Congressional Record, "Personal Explanation," September 14,2006, page H6590. 2& Statement by Representative Bryan Conoway, Library ofCongress Congressional Record, "Providing for Consideration ofH.R. 6061, Secure Fence Act (Extension ofRemal'ks), September 21, 2006. 29 Statement by Senator John Keny, Library of Congress Congressional Record, "Seeure Fenee Aet of2006 (Resumed), September 29, 2006, page S10612.

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The Secretary of Homeland Security has not asked for the amount of fencing provided fol' in this bill. A1though the bill does not authorize a specific amount of fencing, it does dictate exactIy where the fencing should be put up. Some people believe the bill authorizes 730 miles of fencing, but Customs and Border Protection, however, estimates that it will require 849 miles of fencing to get the job done.

These statements by Congressmen Van Hollen, Conoway, and Kerry are representative of arguments presented by many other members of Congress and c1earIy indicate that Congress was fundamentally uninformed with regard to the location and even the proposed length of the border fence. It appears that Congress did not ask for 01' receive basic and vital information fi'Om DHS that would inform its decisions about the fence locations specified in the 20061egislation. Furthermore, Representative Conoway's testimony reiterates the failure of Congress and DHS to consult with local communities or to incorporate resident concerns into the decision-making process.

Further indicating the arbitraty nature of the location of the southern border fence, legislators and public officials have asked why the U.S. governrnent will secure the southern border but not the nOlihern border between the U.S. and Canada. As Representative Phil Gingrey stated in 2006: "Ifwe are really concerned about terrorists, we ought to be much more concerned about our northern border, where there are many more miles ofunprotected border without camera sensors, without fencing.,,30

Congressional records indicate that location decisions have also been based on budgetaty concerns without proper regard either for the effectiveness of the locations 01' for the propeliy rights of border residents. Many members of Congress raised concerns over the dearth of funding available for the border fence project while others pointed out that decisions regarding the location ofthe fence were being made based on the project's budget. These legislators' concerns point to a process that consisted of weighing generally permissible national security objectives against budgetary allocations and political cOlícerns without due consideration and balancing of the rights ofborder residents.

In addition to the arbitraty determinations made by the Secure Fence Act of 2006, dramatic changes to U.S. legislation produced by the Consolidated Appropriations Act of 2008 raise important questions as to the rationale behind the locations planned for the border fence. While the rationale for the originallocations designated in the Se cure Fence Act of2006 was vague or nonexistent, the later legislation's failure to mention any specific areas at all to be fenced 01' to provide any but the most general criteria for detelmining which areas should be fenced - "where fencing would be most practical and effective"-{;alls into question the validity of the current mandate that no less than 700 miles of fencing be constructed.

30 Statement by Representative Phi! Gingrey, Library of Congress Congressional Record, "Personal Explanalion, U.S. HOllse ofRepresentatives," September 14,2006, page H6587.

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The Consolidated Appropriations Act of 2008 no longer mandates that DHS build fencing in any particular location along the TexaslMexico border. The repeal ofthe previous mandate, absolutely requiring 70 miles of fencing in specific areas of the Rio Grande Valley and designating 30 miles of construction in the Rio Grande Valley as a priority to be completed by the end of2008, indicates the arbitrary nature ofthe original legislation. Presumably, border security objectives for the southern border have not changed substantially in the 14 months between the Act of 2006 and the Act of 2008; nor has the security situation at the border changed fundamentally. Again, it appears clear that the originallegislation was based less on valid and coherent intelligence indicating essentiallocations for the fence, and more on other factors such as political expedience and budgetary considerations.

Despite these legislatives changes, DHS is forging forward to build the wal! in essentially the same areas listed in the Secure Fence Act of2006 regardless ofthe new legislation which al!ow for more individual and collective consultation and consideration.

The Planning and Construction Make Arbitrary Distinctions31

In various public statements, DHS has provided glimpses into the rationale for the specific locations ofthe segments ofwall, including: "The approach [DHS] take[s] to managing the borders [is] driven by the landscape, the flow [of illegal pedestrian traffic], the particular challenges there are in any one of the locations. ,,32 While statements from DHS provide sorne insight into the rationale employed by DHS in determining the location of the border fence, the government' s explanations are undeniably vague and do not justify the condemnation of specific plots of land held by private property owners. One conclusion that can be drawn from the void left by these unanswered questions is that decisions regarding the location of the fence are arbitrary and do not take into account al! relevant factors such as the degree of impact that the placement of the fence in certain areas will have on landowners in those areas.

For instance, DHS surveyed private property for construction planning purposes in El Calaboz, Texas, at the property ofDr. Eloisa Tamez. The Working Group visited the North and South sides ofDr. Tamez's property, which are bisected by a levee. On the levee, the Working Group witnessed measuring poles placed there by DHS, which indicate that the border fence will be constructed on the levee. This fence will cut off Dr. Tamez's access to the South side ofher property. In essence, Dr. Tamez willlose important rights to her land, which has been in her family for centuries. Yet, DHS has not made clear what characteristics of her property make it an important location for a fence to protect national security.

JI An aeeompanying paper demonstrates that there are marked and statistieally signifieant differenees in the demographies ofpeople affeeted by the proposed fenee in Cameran County, Texas. See J. Wilson, et al., An Analysis ofDemographie Disparities Assoeiated with the Proposed US-Mexieo Border Fenee in Cameran County, Texas. . 32 Offiee ofthe Seeretary ofHomeland Seeurity. "Remarks by Homeland Seeurity Seeretary Michael Chertoffat Pen-alld-Pad Briefing on the Department's Fifth AImiversary." Mareh 6, 2008.

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The fence will run across the entirety ofDr. Tamez's property in El Calaboz. However, just 6.7 miles southeast, the fence will stop abruptly before reaching the Western property line of the River Bend Resort and Country Club, a popular winter retreat. The fence will renew againjust East ofthe property lineo Unlike Dr. Tamez, patrons ofthe resOli will have unfettered access to the river. Ifthe fence had followed the levee into this propeliy, as it will on Dr. Tamez's property, it would have completely cut offthe resOli from the golf course that it owns. As it is, the country club, golf course, and vacation rental properties, will be unaffected by the fence. (See Appendix 2 fa/' a map of the planned bOl'del'fence in this al'ea).

Recent media reports indicate that similar distinctions are being made in other areas, and that the planning and construction of the border fence is being implemented according to arbitrary distinctions. The following examples of arbitral')' distinctions with regard to the planning and construction of the fence are cited by recent media repOlis and verified by the Working Group:

• In Granjeno, Texas, DHS originally planned to build an 18-foot high fence 01' wall through the property belonging to Daniel Garza-74-year-old retiree born and raised in Granjen033

. There were reportedly no plans to build the fence through the next-door propel1y belonging to Dalias billionaire Ray L. Hunt and his relatives. 34 Instead that property has been designated for large scale profitable development and agriculture undisturbed by the construction of the fence. There was no explanation from the United States as to why security concerns disappear on Mr. Hunt' s properties. Mr. Hunt is reportedly a close friend of President George W. Bush, and recently donated $35 million to Southern Methodist University to help build President Bush's presidentiallibral')'. In 2001, President Bush made him a member ofthe Foreign Intelligence Advisory Board, where Hunt received a security clearance and access to classified intelligence.35

• Original maps for locations for the fence would have had the fence lunning through an important local university campus, the University ofTexas at Brownsville. Yet, there has been no indication that illegal immigration through campus is common and it is, in fact, unlikely that it would be. The University ofTexas Brownsville and Texas Southmost College (UTB/TSC)

33 Fortunately, it now appears that the land of smaJllandowners in El Granjeno will not be ceased, as the county has made a deal with the Federal Govemment to combine conslruction ofthe waJl with repairs to an already existing levee. 34 The Working Group interviewed residents of Granjeno, Texas who provided information on the Runt propelties. Residents stated that Runt Plantation Company (ofthe Runt Family, which also owns Runt Oil Company) owns large acreage ofmonoculture agriculture, which borders Granjeno to the north and northeast. The Runt Family also owns Shmyland, the large housing development recently constructed between Granjeno and McAllen, Texas. The land on which Sharyland is located was fonnerly a plantation area owned by Runt Co. According to Granjeno resident, Gloria Garza, aH agriculture in Ihe area is the ~ropelty of Runt CO.

5 Melissa Del Bosque, "Roles in the WaJl: Romeland Security won't say why Ihe border waH is bypassing the wealthy and politicaHy connected," Texas Observe}', Februmy 22,2008. http://www.texasobserver.org/mticle.php?aid~2688

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have become vocal opponents of the border fence and have called the placement of the bordel' fence "al'bitl'al'Y and capricious. ,,36 In fact, through negotiations with DHS, UTB has been able to change the location and reduce the extension of the fence through its campus, making clear that the original plan fol' the fences in this area had Httle rationale.

• Chad Foster, Mayor ofEagle Pass, Texas, and Chair ofthe Texas Bordel' CoaHtion has stated: "1 puzzled a while over why the fence would bypass the industrial park and go through the city park." He was reportedly utterly unsuccessful in finding "any logical answers from Homeland Security as to why certain areas in [Eagle Pass 1 ha [ve 1 be en targeted for fencing over other areas. ,,37

These stories point to the disproportionately negative impact that the fence will have on certain individuals and communities, and the difficulty that residents have had in getting answers to the question: Whaf is fhe rafionale behind fhe locafion 01 fhe lence on fhis land? This unanswered question is especially problematic in those instances in which sections ofthe fence skip properties belonging to individuals and businesses with more political and/or economic power than most residents in the area. Furthermore, even though the locations discussed aboye cannot yet be verified with complete certainty, that l'esidents cannot verify these locations is yet another indication ofthe utter failure on the part ofDHS to sufficiently infOlID affected residents 01' explain the location ofthe border fence and its rationale.

Finally, in a statement to the U.S. House ofRepresentatives Comrnittee on the Judicimy, Secretary Chertoff stated: "Of course, it makes Httle sense to secure the long stretches of border between our official ports of entry if we continue to have possible gaps in border security at the ports of entry. ,,38 Yet, in the same way, it makes little sense to construct a border fence through private property belonging to individual residents and skip neighboring properties, such as those belonging to Hudson Bend and Ray Hunt. The distinctions made between such properties constitute blatantly unequal treatment of border residents.

The Specific Location of the Border Fence is Not Clearly Justified and Less­Intrusive Measures Exist for Obtaining Operational Control of the Border

Because construction of the wall on the Texas-Mexico border, as planned, involves the taking of property and also treats property owners differently from one another and therefol'e unequally, the United States govemment must justify the decision to construct

36 Christopher Sherman, "Border fence lawsuit dismissed against UTB-TSC," Valley Morning Sta/', March 19,2008. http://www.valleymorningstar.comlnews/fence _ 21 83 I_article.hnnlluniversity _government.hhnl. 37 Melissa Del Bosque, "Ho!es in the Wall: Homeland Security \Von't say why the border wall is bypassing the wealthy and politically connected," Texas Observe/', Februmy 22, 2008. http://www.texasobserver.orglmlicle.php?aid=2688. 38 Michae! Chelloff. "Before the United State House ofRepresentatives Committee on the Judiciary." March 5, 2008. http://www.dhs.gov/xnews/testimony/testhnony _1204746985090.shtm.

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the wall as planned and must also demonstrate that it is implementing the least restrictive means to aehieve its goals in doing so. Yet, the United States has eontinually ehanged the justifieations both for the eonstruetion of the fenee in general and for the specifie loeations for feneing, thus making it impossible to establish a rationallink between the deprivation or limitation of propeliy rights and equal protection and the measures being adopted by the government. According to the Secure Fence Act of 2006, the purpose of the fence is to "achieve and maintain operational control over the entire internationalland and maritime borders ofthe United States". "Operational control" is defined as "the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcoties, and other eontraband,,39. In different statements by U.S. officials, all these purposes -prevention of entranee of tel1'0l'ists and instruments of terrorism, undoeumented migrants, drug traffieking and eontraband-were used to justified either the eonstruction ofthe fence in general 01' its specific 01' proposed location. Whenevel' one of those justifications has been ehallenged, the U.S. authorities have eleeted one or more ofthe other reasons as justification for the taking of private property. It is impossible to know if the border fence that euts through private propeliy has a reasonable relationship to the objective of operational control of the border.

Since 2001, the U.S. has consistently invoked national security objectives to justifY a number ofhuman rights restl'ietions. In contrast, international human rights law holds that restrietions of rights must be proportionate to the State' s ultimate objective, and national security objectives do not give States free reign to restriet l'ights in umeasonable ways. In sum, the U .S. has not made the case that the border fence accomplishes a legitimate purpose for the State.

As mentioned earlier, various human rights bodies hold that, if various options are available to aehieve an objective, the one that "least restricts the l'ight proteeted must be seleeted.,,4o Similarly, in order to justifY any form of diserimination, the State must demonstl'ate that its objectives cannot be satisfied any other way than through diseriminatOlY means. 41

In 2007 and early 2008, DHS approaehed border property owners and demanded that they "voluntarily" execute a six-month right-of-way to their properties for site assessment and survey. These waivers permit DHS to move structures and vegetation, store vehieles and equipment, and bore holes in property.42 Property owners executed these six-month waivers but were not informed that they had the right to al1'ive at a fixed priee for this use oftheir land.43 In other words, these waivers were not signed knowingly. Those who

39 Secure Fenee Act of2006, section 2 Ca) and Cb). "'u.N. Human Rights Committee, General Comment No. 18: Non-Discrimination 10111/1989, at section 82, citing Inter-American Court on Human Rights, Compulsory Membership in an Association Prescribed by Law for Ihe Practice of Joumalism. 41 Ibid. 42 Peter Schey, Civil Aetion No. 08-CV-0555, First Amended Complaint for Injunctive and Declaratory Relief CClass Action), page 3. 43 Congress has diclated that DHS negotiate with border property owners to reaeh a fixed price for Ihe property before seeking condemnation ofthe land. These provisions requn-e that Secrelary Chertoff clearly

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refused to sign the waivers were sued for possession of their land, which has been granted. DHS has apparently now completed the site evaluation stage and moved on to the process of permanently taking private property for the construction of the fence. In the spring of 2008, DHS began to make financial offers to purchase land (in the range of $4,000) and by May 2008, the government had begun suing private property owners to obtain land ti'om those who do not wish to sell voluntarily at the offered price or at all.

Forced taking of land to allow the construction of a border fence that runs through private property is not the least restrictive, least onerous means of achieving the national security and immigration control goals ofthe government. Multiple legislation, press releases, policy briefings, and statements by DHS recognize the availability of less intrusive measures for securing the southern border of the United States. Those that are officially recognized and employed by DHS include the following: unattended ground sensors, truck-mounted mobile surveillance systems, remote video surveillance systems, unmanned aerial systems, and fixed- and rotary-wing aircraft to detect, classify, track and respond to ilIegal border crossings. 44

Before passing the Consolidate Appropriations Act of 2006, Congress seriously debated several alternative bilis that did not include a border fence. Alternative legislation, such as the "Thompson Substitute,,45 focused on refol1ning immigration laws and procedures. None ofthese alternative measures would have required the arbitrary and discriminatory restriction ofthe right to property on the border. Additionally, proposed legislation mandates other measures including the development and implementation of improved satellite communications and other technologies to ensure clear and secure two-way communication capabilities among Border Patrol agents and between all border security agencies ofthe Department ofState, local, and triballaw enforcement agencies. 46 As Senator Leahy stated in a Senate proceeding, "In a country on the cutting-edge of technology, with a hiStOly oflegendary ingenuity, and driven by innovators ofthe highest caliber, we can do better: we can secure our borders through human innovation, technology, and vigilance.,,47 In fact, many ofthese alternatives might be better at meeting the govel11ment' s stated goals, because they would allow direct contact between Border Patrol officials and those attempting to cross the border, thereby allowing for better categorization of border crossers and for physical apprehension where necessary.

define the interest he seeks in real property and then, if the property owners agree upon a price, DHS must purehase the interes!. If a price is not agreed upon, only then is he to proeeed with the eondemnation r.rocess. 4 See the following for details on alternative options: United States Govermnent Aecountability Offiee,

Testhnony before the Subeommittees on Management, Investigations, and Oversight, and Border, Maritime and Global Countelterrorism, Committee on Homeland Security, House ofRepresentatives, Secure Border Initiative: Observations on Selected Aspects ofSBInet Implementation, Wednesday, October 24, 2007. Available: www.gao.gov/new.items/d0813I!.pdf. 45 The "Thompson Substitute" was an amendment to the Secure Border Fenee Act of2006, proposed by Mississippi Congressman Bemie Thompson in September, 2006. 46 E.g. U.S. Senate Bill1984: Immigration Enforcement and Border Seeurity Act of2007. 47 Library of Congress Congressional Record, "Secure Fence Act of2006 (Resumed)," Senate, September 29,2006, page S10610.

15

Recent negotiations between DHS and the Univel'sity ofTexas at Brownsville and Texas Southmost College (UTBITSC) are a powel'ful demonsh'ation of the availability ofless­intrusive measul'es fol' realizing national secudty objectives. In the early months of 2008, DHS surveyed the property ofUTB/TSC and informed the university that a segment of fencing would be constructed through university property. University officials strongly contested this plan, insisting that DHS alter the location of the fence. Afier a prolonged battle with UTB/TSC, DHS sued the university. A Brownsville federal judge dismissed the suit, afier ensuring that DHS would renegotiate the location of the fence. 48

Accordingly, a new agreement between DHS and UTBITSC stipulates among other things: 49

• DHS will work with the University to jointly assess alternatives to a physical banier.

• DHS has agreed that, should damage to University propelty occur, it will make repairs or offer an appropriate fair market value settlement.

• DHS has been authorized to conduct studies, including environmental assessments, and to consult with the University regarding alternatives to a physical bardel'.

• DHS will consider the University's unique status as an institution ofhigher education and will take care to minimize impact on its environment and culture.

• DHS will conduct investigations to minimize the impact of any tactical infrastructure on conunerce and the quality of life for the communities and residents located near the University.

• DHS has agreed not to clear land, mow grass 01' otherwise alter the physical landscape ofUniversity property without the University's consent.

• DHS will coordinate all entry to the campus and give prior notice of all activities on campus to campus police. (See Appendix 1 for text of {he agreement and a map sholVing the original and {he

revised proposed loca/ion of (he fence).

Under pressure that it perhaps did not expect, DHS has demonstrated a willingness to seriously engage UTB/TSC in further discussions over the location of the fence, while other property owners and residents are consistently ignored by the United States government. The agreement outlined aboye makes significant alterations to the original approach used by DHS in dealing with the property .in question, demonstrating the unuecessary expansiveness of the original approach.

"The University ofTexas at Brownsville and Texas Southmost College, "UTBrrSC Hosts Border Wan Subcommittee Heal'ings," April28, 2008. http://blue.utb.edulnewsandinfo/BorderFenee%20Jssue/03_19_2008UpdatedBorderFeneeJnfo.htm 49 The agreement, negotiated between DHS officials and attorneys with the University ofTexas System and Texas Southmost College, was presented at a scheduled hearing on March 19 in U.S. Distl'ict Court in Brownsville.

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State Rcstrictions on the Right to Property are Not Proportional

U.S. immigration law authorizes the Depmiment ofHomeland Security to contract for and buy any interest in land adjacent to 01' in the vicinity of the intemationalland border when the Secretary deems the land essential to control and guard the border against any violation of irnmigration law. lt also authorizes the Secretary to commence condemnation proceedings if a reasonable purchase price can not be agreed upon 50. This is the mechanism that the United States govemment is employing to obtain the land across which it will build its border wa1151

.

Taking segments 01' the entirety of a property owner's land to build a fence across it, 01'

severing portions of an individual' s land with a fence is asevere restriction on the right to property of residents on the TexasIMexico border. It is not proportional to the government's proposed national security and irnmigration control goals because the D.S. government has not considered and therefore not adopted the least restrictive means. Yet, the government is choosing to take privately held land to attain its goals.

Even during its initial surveying process to consider the exact coordinates for the fence, DHS has demonstrated a serious lack of pl'OpOliionality. DHS has offered residents $100 in exchange for unlimited access to their propeliy for a six-month time periodo This compensation is entirely insufficient, and the requirements imposed by the six-month period are umeasonable, especially given the paltry compensation. In essence, by demanding unlimited access for a six-month period with nominal compensation, DHS is already attempting to establish control over these properties. The compensation available to property owners for right-of-access to their land is disproportionate to:

• The potential damages to private property • The oppOliunity cost of using that land in other ways during the six-month time

period • The mental stress placed on land owners by the presence of CBP agents

occupying their land and • The quasi-possession of properties by DHS.

It is not surprising that the decisions regarding construction of the fence are contrary to property rights since DHS has failed to consult with property owners and others along the TexasIMexico border regarding the best procedure that would still meet the government's goals. Secretary Chertoffhas failed to comply with the consultation requirement ofthe Consolidated Appropriations Act of 2008, which mandates that DHS consult with property owners, cities, and other stakeholders in arder to minimize the impact on the environment, culture, cornmerce, and quality of life for the communities and residents

,o 8 U.S.C. §1l03(b). Congressional Researeh Serviee, RepOlt RL33659 Border Seeurity: BalTiers Along the U.S. Intemational Border, Updated January 8, 2008, by Bias Nuñez-Neto and Michael John Gareía at 17. 51 Unlike prior feneing projeets that \Vere primarily located on federalland, approximately 54 pereent ofthe planned fenee in the U.S./Mexico border is seheduled to be eonstrueted on private property See Govemment Aeeountability Offiee, Report GAO-08-508T, Se cure Border Initiative: Observations on the Importanee of Applying Lessons Leamed to Future Projects, February 27, 2008, at 15.

17

located near the sites at which activities relating to the border fence may occur. This Act is in keeping with internationallaw in that it allows for a method of interaction between the State and residents that would produce the least intrusive measures for obtaining the State's objectives. In this case, proper consultations might have led to a decision to use methods other than physical fencing requiring the taking of land to control pmt of the border. In other cases, proper consultation might have led to better locations for the fence that would cause the least degree of intelTuption in the property owners' use of their land. However, DHS failed to follow this process.

In addition, DHS has not made known to property owners the process by which the government will fix the price of their land. 52 Particularly, the govemment has not issued rules, guidelines, instructions, directives, or policies regarding how to fixing the price of residents' properties. 53

. •

In fact, even the construction of the fence does not require the seizure of land as the govermnent is proposing. In Hidalgo County, federal and local authorities reached an agreement that would largely eliminate the need to take land for the fence. The plan will modifY levees along the Rio Grande with an 18-foot sheer face on the river side. Yet, DHS has not explored similar plans elsewhere.

The Burden Rests on the United States Government to Show it has Adopted the Least Restrictive Means and the Government has not Met that Burden

The burden is not on citizens to demonstrate that the construction of a border fence is an umeasonable and unnecessary measure to protect national security; the burden is on the govermnent to show that it has adopted the least restrictive means of meeting a legitimate govermnentalobjective.

The U.S. govermnent has not provided sufficient evidence to SUppOlt its position that the fence is necessary and that its planned locations are the most appropriate. As demonstrated in prior sections of this briefing paper, it is extremely difficult for persons and organizations outside the government and not privy to govermnent intelligence to determine: 1) the reasoning behind the placement of the border fence, and 2) whether the

"The Working Group interviewed El Calaboz, Texas residents Hidalia and Guadalupe Benavides. The family seeks to rescind the contract they signed to give access to DHS to their property, because !vIrs. Benavides argues Ihat Ihe agreement she was asked to sign by DHS only allowed access lo DHS survey machinery, and il said nothing of negotiating a price for the sale of the right to use her property (temporal)' easement). She stated she does not remember what language (English or Spanish) the agreement was in, and that DHS lold her orally that it was an agreement only to leave machines on her propeliy. !vIrs. Benavideas stated that she does not know how to read either language (''poquito''), nor does her husbaud. She also stated that she \Vas never offered Illoney for the temporary easement, and that one day DHS came to offer Illoney to purchase her property. TIle Working Group \Vitnessed and photographed requests by DHS that offer $4,100 to purchase the Benavides property. No severance damage was offered by DHS in its offer to purchase ¡he propeliy. The Benavides family can h·ace the land back to the tum ofthe 19th

Cenhtry. 53 Peter Schey, Civil Action No. 08-CV-0555, First Amended Complaint for Injunctive and DeclaratOl)' Relief (Class Action), page 4.

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border fence will be the most effective means ofprotecting national security. The information provided by the U.S. govermnent is both limited and vague.

Though the Consolidated Appropriations Act of 2008 requires Secretary Chertoff to consult with affected residents, DHS has repeatedly failed to do so. This lack of comrmmication is indicative of a general pattem ofbehaviof. 54 The State has consistently failed to produce the rationale for and justification of the location of the border fence. For this reason, the Texas Border Coalition, an organization ofmayors, county commissioners and economists, filed a federallawsuit in May arguing that the Department of Homeland Security failed to conduct required negotiations with property owners and local authorities in planning construction ofthe barrier in Texas55.

The following example demonstrates the lack of proper consultation by DHS. In December of2007, DHS held a town meeting in Brownsville allegedly to comply with the legislative requirement to conduct proper consultation with affected cornrnunities. At the town meeting, community pm1icipants were forced to assemble at the Events Center where govermnent officials simply entered cornrnunity participant' s cornrnents into a computerized system. Government officials did not provide residents a forum or time to make public comments, to exchange infolmation between DHS and the cornrnunity or the opportunity to ask questions directly. Professor Juliet Garcia, President ofUTB/TSC, stated to the Working Group that "the town meeting was guarded by heavily armed guards from DHS and Border Patro!. There were also plainclothes Border Patrol officers at the meeting". Dr. Garcia felt that there was such a lack of freedom for the community to make public cornrnents that she and other cornrnunity members held a second town meeting that same night across the street in a field56. Other pm1icipants told the Working Group that the atmosphere was intimidating, orchestrated and not conducive to meaningful cornrnunity input. One student described the meeting as "not a friendly place and very uncomfortable.,,57

The Working Group conducted interviews with UTB/TSC President, Dr. Juliet Garcia, and UTB/TSC professor Jude Benavidez. 58 These interviews reveal the State's failure to provide affected communities, including UTB/TSC with information regarding the border fence. Though DHS was required to inform residents about plans for the border fence in Brownsville, Dr. Garcia first learned about the location ofthe border wall on the university campus when a UTB/TSC official attended a public hearing held by DHS in June or July 2007. No prior notice had been given and it was not until this hearing that the university realized the fence would cut through its campus. At the hearing, it became apparent that DHS representatives were using outdated maps of the campus in planning

54 For example, Representative Hinojosa refen·ed to meetings between DHS and the residents ofLaredo, Texas in 2006 as "sham hearings that only allowed testimony from one side of the issue and are being used to justify this bil!." Library of Congress Congressiona! Record, "Personal Explanation, House of Representatives," September 14,2006, page H6583. "See Randa! C. Archibold and Julia Preston, Homeland Security Stands by Its Fence, New York Times, May 21, 2008. 56 Interview with Professor Juliet Gareia, President of UTB, on May 2, 2008. 51 Interview with faculty and students at UTB on May 2. 2008. "Interview May 02, 2008.

19

the location ofthe wall; DHS was not aware that UTB/TSC had expanded its campus substantially, in the direction ofthe river. Therefore, DHS had severely underestimated the amount of land that would be cut off from the main campus by their planned border fence. Not only did DHS fail to make the plans for the fence public in a timely manner, it failed to seek out and obtain critical information about the impact ofthe chosen fence location.

Not only has DHS provided little information about or proof ofthe effectiveness ofthe fence and the rationale behind its location, it appears that this information is a moving target. In a March 2008 press conference, Secretary Chertoff stated: "Well, 670 miles should be done by the end ofthis year. We will probably build sorne additional fencing beyond that. 1 can't tell you what an exact number is. 1 suspect that the physical fencing will-ifthere's going to be more than the 670 [miles], whatever that number is, it will probably be done in the following year."S9

Essentially, the United States is abusing its power to keep national security information confidential. The State is either purposefully withholding information on the exact locations of the border fence and the rationale behind these locations, or it has not yet detennined the exact location of the border fence. In the first case, the government is abusing its privileged position, presumably in order to quell opposition on the part of property owners, such as the current litigation, Civil Action No: 8-CV-0555.60 Ifthe second case is true, the State's argument that border fence locations are chosen based on local intelligence and other rational criteria for effectiveness is undermined, as it would appear that this infonnation is either imprecise or unavailable.

Conclusion

In the process of planning and constructing the border fence in the Texas/Mexico border and particularly in the Rio Grande Valley, the United States government is violating residents' right to property. Additionally, the government is conducting the border fence

59 omee ofthe Seeretary ofHomeland Seeurity. "Remarks by Homeland Seellrity Seeretary Miehael Chertoffat Pen-and-Pad Briefmg on the Department's Fifth Anniversary." Mareh 6, 2008. 60 Civil Aetion No: 8-CV-0555 is an aetion brollght by attomeys from the Center fi'om Human Rights and Constitutional Law: Peter A. Sehey, Carlos Holgllin, and Dawn Sehoek, and attomeys from the South Texas Civil Rights Projeet: James HmTington, Abner Bumett, and Corinna Speneer-Seheuriek. The civil aelíon is brollght on behalf ofplaintiffs Eloisa Garcia Tamez, Benito J. Garcia, Idalia Benavidez, Eduardo Benavidez. The plaintiffs are private land owners in the Texas Rio Grade Valley who are affeeted by, and opposing the border fenee. The defendants are Seeretmy Miehael Chertoff and Aeting Exeeutive Director of Asset Management for U.S. Customs and Border Patrol, Robert F. Janson. The civil aetion claims that: defendant Chertoffand those ,;"orking as his agents have disregarded the laws ofthe U.S. in pushing forward to plan to build at least 70 miles ofborderwall in the Rio Grande Valley; six-month right-of­aeeess waivers signed by several ofthe plaintiffs are entirely umeasonable and were signed without plaintiffs being informed oftheir legal rights; DHS has not properly eonsulted with affeeted eommunities; DHS is no longer required to eonstruet feneing in the Texas Rio Grande Valley; and DHS has failed to make knOWIl its rules and polieies relating to the proeess of negotiating for residents' property rights. The plaintiffs seek to eertifY and elass and the issuanee of temporary and permanent injllnetive and declaratory reliefto require Seeretary Chertoffto aet in full eomplianee with federallalVs regarding the eonstruetion of the border fenee.

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planning and construction process in ways that violate the principIes of equal protection and non-discrimination as understood by international human rights law.

Although the U.S. government has the right, according to internationallaw, to subordinate the use of private property for reasons of public utility and social interest­inc1uding national security and the control of immigration-it has not done so in a way that compOlis with international human rights law.

By planning for the construction of a border wall across land owned by persons living along the TexaslMexico border, the U.S. government is violating the right to property and the right to non-discrimination because the restrictions on the right to property imposed in this case:

• • • •

are not proportional to the State's objectives defy the principIe of necessity because they are arbitrary are discriminatory and are not propoliional given that other less restrictive measures are available.

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Appendix 1: April2008 Agreement Between DHS and UTBrrSC

UNliED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

TH" Ul\ITEO SíATES OFAMERICA,

Plainliff, ;.

~ ) )

37:e'2 ACRES OF U\ND. mote cr le35, ) situate in CM.IERON COUNTY, STATE } OF TEXAS; and TEXAS SOUTHMOST ) COLLEGE DISTRICT, El AL. )

Civil AcUan No, 8-08.58

ORDER Oc OISMISSAL

On 1hjs da y, the Court cCl1s1d-ered PlaintiH's r ... lolion fUf Ordc:r for lmmedlate DeHvéry of Passe;¡sion (Ooc,'{~t No. 4) and ORDERS as foilows:

1, Thfs Order 18 without pre-judlGt3 ta OOTonrlflnts' righls tú later asse:rt stallJtory endlm conslituHonaJ chal!nngQs fa fhl1 condemnaUon af an inlEre~t in any prcpmtj in which Defandaols Ila .... e an intetegL

2. Plaintlffti ernp-Joyees and c¡:¡ntmctors shall hava iha rioht lo enteJ' upon U1B pruperty dC$clibcd in Exhíbit "e' to Plaintiffs OBdarél¡lon cf Taking (Docket No. 2) for!he purr:ose of Eissossing metrrOds of sBclIril'ig Opem1!ont.'31 conllOl of (he bordor thrnugh tha use of me1ica! inrrastructure. Separate and l]part from thi;¡ eminent domElir, procaadif1g. Pla:nliff, aGting Ihrough {he Department 01 Homelené Secudty, wíll jointly 85565-3 with Defendants alte.rnati\Jes lo 8

physical bardar. Plalntiff's studies may indude e.nvironmental asses..'mlsn(s and property sur.'e)'s, including th¡'ji rigtn 1-0 tamp-orañly store, nlove arlO. retrlüve rlecGéSSái)' equipment 2nd suppli-as: $urvey, slake out, appralse. b-me añe lake $011 end/or water samples, and perform 8rly other such wúrk which may be neccssmy a11(1 incidental to Plalntlffs assessment, sUbJect tú Ihe limitations dBscnbed ¡rl this Order, This Order speciflcally authorizfls PIc¡intJf to conduct such st'.tdies ns ¡;¡rG reqL.llred to c.onsult wtth Defondants. However t!lis order wO¡Jld oot rec,uire a '.vritten report,

0_ In condudíng its stud¡es, Plaintiff will consider Oefendants' uniqufj status as an instituUon of hIgher educalkm. Spedfi-ca.lly, pursuarJ to 8 U.S.C. § 1103, Nele, Pub. L. 110-161, Di'l. E., Title V § 5€4(a). P!;;lintiff will cOl'lduct su eh invesUgatlons as w'llJ pBiTñlt lt to {')Jn5utt

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with Defendants In arder to minimize the impact of any tactical infrastructure on the environment, culture, commerce, and quality of life for tho communities and residents located nllar the property subject to thls Order.

4 Recognlzing thal lhe property is par! of a universlty campus, Plaintifl w/ll take all reasonable action to promote safety and minimiza any impact on the educational activities thereon,

5. Plainliff is granted access to the property for six months.

6. The rights granted herein inelude the rlght of ingress and egress on other lands of the Delendants no! described in this Order, provided such ingress and egress is necessary to access the property and is not otherwise convenientlyavailable 10 Plaintiff. Plain!iff shall give Defendants prior notice of all activitins on the property and shall coordinate entry to the property wilh Defendants and Defendants' poliee department.

7. AII tools, equlpment, and other property taken upon or placed upon the land by Plaintiff shall remain the property of lhe Plaintiff and may be removed by the Plaintiff at any time up to the expiration 01 Plalntiffs righ! of access.

8. II any action 01 the Plaintiffs employees or agents damago rcal property, Plaintiff '11111, at Its opllon, elther repalr such damage or Olake an appropriate settlement with the Oefendants. In no elfent shall such repair or seU!ement exceed the fair market valua of the fee Interes! 01 the real property a! the time immediately preceding such damage. Plaintiffs liability for damage may not exceed appropriations avai!able for such payment. The provisions of this Order are without prejudice to any ñghts the Delendants may have to make a e/alm under applicable laws for any other damages. To the exten! possible, the Government shall use contraclors tha! have appropriate liability insuranc8.

9.· Plaintlff will no! e/ear land, mow grass, or otheJWlse alter the physlcallandscape 01 Ule property without Defendants' consen!.

10. The Clerk is ordered to e/ose thls case on the docke!. However, ihe Court retatns jurlsdiction to resalve interpretations of this Order, or any e/alms lar damages under paragraph 8.

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t International Bridges •••• UTBfTSC Property ~ Historical Sites

Proposed Fence ~ Righ! Of En!')' (ROE) = Revised ROE Reques! (January 2008) •• Revised DHS F ence Une (F ebruary 2008) ~ Rio Grande River

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AllPcndix 2: i\1ap of the Border F'ence Skipping River Bel\d Resort

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